to pay their indorsements as they came round, for which advances we have security. In order, however, to relieve them from the necessity of borrowing, and needing more cash capital to carry on the business comfortably, both the Companies alluded to owing Messrs. Thompson & Co., each about $375,000, making, together, $750,000, exccuted a mortgage to John H. Hicks, W. S. Wetmore, and James Brown, for $750,000, to secure the payment of those bonds, which are payable in six, eight, and ten years. A gentleman goes out to Europe this month to negotiate these bonds, which he feels confident of doing on favorabble terms. The negotiation of these bonds, and the securities held, would pay off all the advances made by ourselves, Messrs. Hicks & Co., and of W. S. Wetmore, who also made them some advances. From Thompson's statement of the busi ness of the factory, they are doing a good, nay, a very profitable business, and I feel that in making sales to them now, no more than the ordinary business risk would be run.

If the bonds are negotiated, which is confidently expected, they would be enabled to conduct their business with more facility and com fort than they have ever yet done, and as I will recommend brother William to take from $60 to $100,000 for himself and for me, whatever they are negotiated at, the confidence shown will probably help the negotiation. Messrs. Hicks will also take some of them. Since the failure, Thompson & Co. have laid their hands on Austen & Spicer's property, to the extent of $50,000, reducing the risk to $123,000, and out of this they will get a dividend. As Mr. Orrin Thompson considers himself fully worth $400,000, any loss that can now occur by Aus ten & Spicer does not hurt him much. All they want is the negotiation of the bonds, to make them move on with perfect comfort. (Signed) JAMES BROWN."

The next letter from Curtis to Brown is dated "Boston, 26th June, 1851. A friend of ours desires me to inform him how far it would be Satisfactory to me (you) to have him sell to the Thompsonville Company. I replied that I believed you thought favorably of the concern. Now, I wish to know what your present feel ings are in respect to that concern; there being several among my friends here who have heretofore sold them wool, and wish to continue to do so."

and he was solicitous about the paper he held. Witness supposed it amounted to about the sum of $40,000. He said Brown was the friend of Thompson, and witness was requested to ascertain his standing by writing to Brown.

As the answer was marked confidential," the witness, when Iasigi first read the letter, declined handing it to him to show to his partner, but on his calling, it was shown to him also. Witness expressed a favorable opinion as to Iasigi's getting his money. Mr. Brown never authorized the witness to show his letter to anyone. After the failure of Thompson, Iasigi stated he had collected his debt, but that he again trusted them. The witness remarked, that on that letter you should not have trusted them. He asked to see the letter, and on reading it he said, if you had not stated this to be the same letter, I should not have believed it. The witness stated, some of our clients prior to this had been in the habit of selling wool to Thompson & Co. There were five or six firms, importers of wool, who had credits with me. It was highly important to me and my principals that I should know the standing of this great concern, because large amounts of credits were being invested in wool, by houses which might or might not be jeoparded by selling to that concern; I mean invested by correspondents of Brown, Brothers & Co., who had credits for them.

Mr. Grant, a witness, stated that he, lasigi, and several others who had sold wool to the two Companies and Thompson, had an interview with the defendant at his office in the City of New York, where a conversation respecting the letters was had, principally between Iasigi and Brown, who replied that the letter on the 7th of April was a guarded one, and as to the second letter, it was only a statement that " we continue to have a favorable opinion of the concern." He proceeded to say that the connection of Brown, Brothers & Co. with Mr. Thompson had been of long date; that they had a great number of transactions together, and that at the time the April letter was written, they intended to carry Mr. Thompson through; but that Thompson had deceived them. He repeated several times that this was a guarded letter, and as it was written in entire good faith, and as they had lost much more than we had,subsequently to the writing of the letter, they did not see how there could be any re

The answer to this letter was: "Dear Sir-sponsibility resting on them. We are in receipt of yours 26th instant; contents noted. We continue to have a favorable opinion of the concern you allude to. (Signed) BROWN, BROTHERS & Co."

As the company was about separating, Mr. Stewart Brown observed: "If you had called on us, gentlemen, and conversed with us, instead of writing, you would not have sold this Mr. Curtiss being called as a witness, said he wool. That the letter was a guarded one, was was agent for Brown, Brothers & Co., who several times repeated. That they had great carried on in the City of New York an exten-confidence in Thompson; that at the time the letsive banking business. He wrote his first letter was written they had lost their confidence, ter at the request of Iasigi, and never showed the reply except to him and his friend Mr. Skinner, until after the failure of the Thomp When he wrote to Brown he did not let him know that the information requested was for any other person than himself. On the day his first letter was written, Iasigi said to him that he held a large amount of notes of certain factories in Connecticut, indorsed by Orrin Thompson, of New York; that by the recent failure of Austen & Spicer they had lost money,

sons.

but still meant to carry him through in good faith; but being unable to do so, and having lost their confidence, the letter was guarded.' On being asked by witness, if, at the time the first letter was written, he had all the property of Orrin Thompson conveyed to him, he replied: "No, sir, not all his property, but his real estate." There was no objection at this time by anyone, that the letter was confidential. The Browns refused to acknowledge any responsibility.

statement of facts in regard to the pecuniary ability of an individual or company, and espe cially if this be done through interested motives or fraudulent intent, by reason of which a credit is given and the debt is lost, the facts which conduce to establish the liability must, as in this case, be outside of the writing. And if these facts may not be established by parol evidence, there can be no remedy in such cases, however gross the fraud or ruinous the consequences may be.

After this evidence had been given, the plaintiffs offered evidence, not objected to or excluded, except as hereinafter stated, tending to prove that certain statements in the letter of April 7th, 1851, material to show the property and credit of the two Companies, and of Orrin Thompson, and the safety and expediency of selling them goods on credit, and material to influence and determine the judgment of one who should read the letter, in regard to the safety and expediency of so selling goods on credit, were false at the time the letter was written, and were then known to the defendant to be false. And that the defendant, prior to the 7th of April, alone and jointly with one Hicks, had taken conveyances, in mortgage or absolutely, of all Orrin Thompson's property, real and personal (with some small exceptions), to the amount of $188,000, as security for the debt and liabilities of the house of Thompson & Co., to defendant's house and said Hicks, amounting to over $509,000. And also offered evidence to prove that defendant had an interest of a pecun- In his letter of April the 5th, Mr. Curtis reiary kind to sustain the credit of said Thomp-quested to know "the opinion of the defendant sonville Company, said Tariffville Manufacturing Company, and Orrin Thompson, and to induce extensive sales of goods on credit to them.

And other evidence was offered, tending to show that the letter was written with a fraudulent intent, and that it was intended for other persons than Curtis. And the plaintiffs proved that they made the sales stated in the declaration, relying on and trusting to the statements in said letter.

But the evidence, as above offered, was rejected as immaterial and as insufficient, when taken in connection with the other evidence above set forth, to authorize the jury to find a verdict for the plaintiffs.

And the court thereupon ruled and held, that the plaintiffs had not maintained their action, and directed a verdict for the defendant. And a verdict was accordingly so rendered. To which rulings and direction the counsel for the plaintiffs excepted.

It is contended that the letter of the 7th of April, being marked confidential, could have been intended only for Curtis, the agent, and that he was not authorized to show it to the plaintiffs. In his testimony, Mr. Curtis says Brown never authorized him to show the letter, There may have been no express authority to show the letter, but the intention of the writer. in this respect, can be best ascertained by ref erence to the facts and circumstances under which it was written,

as to any possibility of loss by selling largely to the Thompsonville Company or Orrin Thompson; and he remarks, whatever that opinion may be, it will be discreetly used by myself."

Mr Curtis states, when under examination as a witness, that he was then, and had been for several years, acting as the agent of the Browns, and that was his principal business. He said that he was not, at any time, a seller of wool to the factories of Orrin Thompson. This employment of the agent must have been known to his principal, and it appears in the proof that when the plaintiffs and others had an interview with the defendant in New York, he spoke of the letter being guarded, but made no objection that it had been written to his agent in confidence, and ought not to have been shown to the plaintiffs.

In view of these and other facts, it might have been submitted to the jury whether the defendant in marking his letter "confidential," intended it for the eye of his agent only. The The 3d section of the Act of Massachusetts, terms of the letter, independently of the above to prevent frauds and perjuries in contracts and facts, would scarcely authorize such an inferactions founded thereon, published in the Re-ence. The "opinion will be discreetly used by vised Statutes of 1836, provides that "No ac- myself." This was notice to Brown that the tion shall be brought to charge any person, upon opinion was to be used, and how could it be used or by reason of any representation or assurance by the agent, who made no sales of wool to made concerning the character, conduct, credit, Thompson on his own account, without imparttrade or dealings of any other person, unless ing the opinion to others; but the opinion will such representation or assurance be made in be discreetly used by myself." It shall not be writing, and signed by the party to be charged made known by any other person than myself, thereby, or by some person thereunto by him and you may rely on my discretion. In view lawfully authorized." of the facts, the jury should consider whether the word "confidential" might be construed to mean, in confidence that you will use my opinion discreetly by yourself, as you propose, or whether it restricted the letter to the agent only.

As the letter was written in New York, a doubt has been suggested whether this Statute can apply to the case. The letter was intended to operate in Massachusetts, and consequently the law of that State applies to it. But it is not This seems to have been the construction given perceived that the Statute can have any other to the letter by the agent. He suffered Lasigi effect than to require the representation, on to read it, but refused to give it into his hands which the defendant is charged, to be in writing. to show to Skinner. Had the writer intended No one controverts the power and duty of the that no one should read the letter but Curtis, court to construe all written agreements or pa- he would probably have said so. Such a repers which are given in evidence. This is not striction was not necessarily imposed by the the question involved in this case. No individ terms of the letter, in view of the facts proved. ual can be held responsible for a statement of Its detailed statement of facts in regard to the facts, however injurious they may be to an in- embarrassments of the two concerns and of Or dividual or company. But when there is a mis-rin Thompson, and how they had been relieved

by himself and others, and enabled to do a good, nay. "a profitable business," &c., would be a matter, in connection with other facts, for the jury to consider, and to determine whether the letter could have been written for the eye of the agent only, who at no time sold wool to Orrin Thompson.

In another letter, written to the defendant by Curtis, he says: "A friend of ours desires me to inform him how far it would be satisfactory to me (you) to have him sell to the Thompsonville Company. I replied that I believed you thought favorably of the concern. Now, I wish to know what your present feelings are in respect to that concern, there being sev eral among my friends who have heretofore sold them wool and wish to continue to do so.' To this, Brown, Brothers & Co. reply: "We continue to have a favorable opinion of the concern you allude to."

mitted to them for their consideration and decision.

We have necessarily referred to the leading facts stated in the bill of exceptions, in order to show that the Circuit Court erred in withdrawing them from the jury; but we express no | opinion on the merits of the case.

The judgment of the Circuit Court is reversed, and the cause is remanded for a venire de novo. Mr. Justice Campbell, dissenting: The importance of this cause renders it proper that the reasons for a dissent from the judg ment should be placed on the record. The charge of the plaintiffs is, that in anticipation of large sales of merchandise to two Manufacturing Corporations of Connecticut, on a credit, and distrustful of their condition to govern and direct their conduct, they sought of the defendant, through his agent, an opinion and inforThis letter sheds some light on the first let- mation of them and their indorser, Orrin ter of Brown. It was on the same subject, and Thompson, as to the risk they would encounwas a reiteration of what had been stated more ter. That the defendant was intimate with particularly and at large in the first letter. In their affairs, and knew they were untrustfact the words "we continue to have a favora-worthy, but well knowing the motives of the ble opinion of the concern you allude to," refers to an opinion before expressed.

As the court instructed the jury to find for the defendent, on the ground that the plaintiffs had not sustained their action; if the plaintiffs gave, or offered to give, any evidence which was fit to be considered by the jury, the judgment must be reversed. Any evidence couducing to prove that the statements of the defendant, in the letter of the 7th April, in regard to the con dition of the Thompsonville Company and Or rin Thompson, and their ability to meet their engagements and in regard to the value of Thompson's property were false, was competent evidence as tending to prove the facts. And especially was the testimony of Grant admissible, who heard the defendant say, if the plaint iffe had called on them personally, they would not have sold their wool to the Company; also the statement that before the letter was written Brown admitted that he had lost confidence in Thompson, and therefore the letter of the 7th of April was guarded. These and all other facts which conduce to show that the defendant acted in bad faith in writing that letter, are proper to be considered by the jury.

plaintiffs' inquiry, they wrote to their agent a letter for exhibition, containing false and fraudulent statements and representations, calculated and designed to increase the credit of the Corporations and Thompson, and to induce the plaintiffs and others, who, like them, should see the letter, to sell their property to them. These averments, describing the circumstances under which the information was obtained, and the knowledge of the defendant of the aims of the plaintiffs, are, in my opinion, material, and should be substantially proved.

In Pasley v. Freeman, 3 T. R.. 51, Justice Ashurst, replying to the argument that, should the principle of that suit be supported, actions might be brought against anyone for telling a lie by the crediting of which another sustains damage, said: “No; for in order to make it actionable, it must be accompanied with the cir cumstances averred in the count, namely: that the defendant, intending to deceive and defraud the plaintiff, did deceitfully encourage and persuade them to do the act, and for the purpose made the false affirmation, in consequence of which they did the act.' And Lord Kenyon said two grounds of the accusations concur: "The plaintiffs applied to the defendant, telling him that they were going to deal with Falch, and desiring to be informed of his credit, when the defendant fraudulently, and knowing it to be otherwise, and with a design to deceive the plaintiffs, made the false affirmation which is stated on the record, by which they sustained a considerable damage.'

By whatever motives the defendant may have been actuated, he is not to be held responsible, unless his letters did mislead, and were intended to mislead the plaintiffs. And it will be for the jury to say, on a thorough examination of the letters, and the facts and circumstances connected with them, whether they were calculated to inspire, and did inspire, a false confidence in the pecuniary responsibility of the Thomp- The case of Pilmore v. Hood, 5 Bing. N. C., sonville Company and Orrin Thompson. If an 97, was that of a defendant about to sell a pubimpression, not only of their solvency, but of lic house to one who had agreed to purchase. their success in business, so that by selling He fraudulently misrepresented to him its relargely to them no more than the ordinary risks ceipts. The bargain having failed, the sale was of business were incurred, was made and au- made to another, who had heard these reprethorized, by the letters, while, at the same time, sentations and acted upon them with the knowltheir true condition was known to the defend-edge of the defendant. Lord Chief Justice Tynant, which did not authorize such a represen- dal said that notice to the defendant was an tation, and which was intended to deceive and important ingredient in the case," and adoptmislead the plaintiffs, the defendant may be ing the terms of Langridge v. Levy, 2 M. & W., justly held responsible. But of this the jury 532, he says: "We do not decide whether the are to judge, they being the triers of the facts action would have been maintainable if the outside of the letters, and which should be sub- plaintiff had not known of and acted upon the

false representation. Nor whether the defendant would have been responsible to a person not within the defendant's contemplation at the time of the sale, to whom the gun might have been sold or handed over. We decide that he is responsible in this case for the consequences of his fraud whilst the instrument was in the possession of a person to whom his representation was either directly or indirectly communicated, and for whose use he knew it was purchased."

In Gerhard v. Bates, 2 Ell. & Bl., 476, the misrepresentation was contained in the prospectus of a bubble Company, of which the defendant was a director. Lord Campbell said, "that had the plaintiff only averred that afterwards, having seen the prospectus, the plaintiff was induced to purchase the shares, objection might have been made that a connection did not sufficiently appear between the act of the defendant and the act of the plaintiff, from which the loss arose; but the second count goes on expressly to charge the defendant, that by means of the said false, fraudulent and deceit ful pretenses and representations wrongfully and fraudulently induced the plaintiff to become the purchaser and bearer, and plaintiff did then, and by reason thereof, actually be come the purchaser and holder of the shares, and alleges the loss sustained to have been the direct consequence of the defendant's act. Thus the wrong and the loss are clearly concate nated as cause and effect."

The allegations, therefore, being essential to the action, the question is, was there any evidence to go to the jury for their support?

becomes necessary to inquire of the circumstances under which that communication was made to him. It was not told to the defendant that the plaintiffs had asked for information of Mr. Curtis, nor that his letter was written at his request, nor was he advised, until several months afterwards, that any use had been made of the letter. I do not think it necessary to consider how much the power of the agent was limited by the mark" confidential," on the face of the letter. But I will suppose that it was nothing more than a repetition of the caution that it should be "discreetly used" by Mr. Curtis, and that the defendant is liable for the use he made.

The evidence on the record comes from the plaintiffs; and in reference to the circumstances of the exhibition from a single witness. The agent of the defendant was a near neighbor and friend of the plaintiffs, but had never had any intercourse of business with them, either for himself or for his principal.

Such being their relations, Iasigi, on the 5th April, came to him as a friend and neighbor, and stated that "he had a large amount of notes of certain factories in Connecticut indorsed by Orrin Thompson; that there had been a failure recently, in New York (Austen & Spicer), by which he thought the factories, or Orrin Thompson, or all of them, would lose money; and that he felt anxious as to the fate of the paper he held." He did not state the amount he held exactly, but Curtis was led to believe it was about $40,000. He proceeded to say that Mr. James Brown was a friend of Orrin Thompson, and that he (Jasigi) had himself I leave out of consideration, for the present, heavy dealings with him, and that he wished the statute law of Massachusetts. The charge him (Curtis) to write to Mr. James Brown and of the declaration is, that the letter was written ask him about the standing of Thompson and his for exhibition to the plaintiffs and among deal- property. Curtis accordingly wrote, but did ers like the plaintiffs, and to deceive those who not state that he wrote at Iasigi's request. should see it. The proof of the plaintiffs is, Upon this statement the particular form of the that until after the failure of the Corporations, inquiry is open to, and will be the subject of only two persons were permitted to see it, or remark hereafter. The question to Mr. Brown, heard of its contents from Mr. Curtis. One of is: What is your opinion as to any possibilthese was Skinner. The proof in regard to the ity of loss to the Thompsonville Company or exhibition to him is: " Iasigi asked me (Curtis) Orrin Thompson?" The witness proceeds: “I to let him take the letter to his friend Skinner, was led to ask the information and to commuwith whom he always advised. I (Curtis) nicate the result to him in consequence of the again said the letter was confidential, and that friendly relations that had long existed between I could not suffer it to go from my office. He us, and further because I thought it would tend then said, will you let Skinner see it here, re- to relieve Mr. lasigi's mind, and not with a peating that he always advised with Skinner on view to future sales." He says further, "at matters of importance, and that he wanted him these interviews about my letter, and Brown's to see it. Upon this solicitation I consented, reply, there was nothing said about any antici and Skinner came with Iasigi and read the let-pated or prospective operations by Iasigi. Mr.

ter."

There is no evidence that Skinner ever had a transaction with the Corporations of Connecti cut, or conducted a business which could bring him into any contact or connection. And surely this evidence can afford no support to the averment of a purpose to defraud or injure him, or others through him.

The charge in the declaration, by this evi dence, loses its generality, and is reduced to the imputation of a mischievous and fraudulent design upon the plaintiffs alone. The only use, "the discreet use." of the opinion contained in the defendant's letter, consisted in communicating its contents to Iasigi himself, and to his confidential friend, at his solicitation, and that he might advise intelligently with him. It then

Iasigi said the credits were due to him.' The witness "never knew that he had sold his notes," but was asked if he would guarantee. them.

This statement of the circumstances of the exhibition of the letter to lasigi contains the whole case. No other letter of the defendant was seen by him, no other communication was made to him, nor was this letter after this produced to any other person before the failure the Corporations. Now, the proof of the plaintiffs is that they held but a single note, of less than $800, running on time, at this date; the others had been sold in the winter previously, in the New York market, without indorsement or guaranty. They had a book debt then due, upon which a large payment was made within

ten days after, all of which has been collected, | apprehensions of loss upon his notes were still and about which no solicitude was expressed. moving him, by addressing queries as to the It likewise appears that Iasigi did contemplate probabilities of his getting his money, and imfurther operations, for in January Thompson portunes Curtis to exhibit the letter to his had taken samples of wool to arrive, and friend, that he might profit from his counsel. which did arrive, and was sold about six weeks The declaration avers that this letter, exhibited from this interview. under such circumstances, was written for exhibition to inquiring dealers, to encourage and persuade them to give credit to those Corporations, and was shown to the plaintiffs with that design. That when it was written and exhibited, the anticipated transactions from which loss has followed, were known to the defendant, and the object of the exhibition was to induce the plaintiffs to make them.