Knowlton, J.
The evidence in this case tends to show that for several years prior to J une 1, 1890, the defendant had been in the business of selling dry goods at retail, having all the time one store, and during the last part of the time two stores, in Boston; that up to that date he paid cash for substantially all dry goods purchased, but after that, until his failure on September 6, 1890, he made large purchases from numerous persons, all on long terms of credit, none of which had expired at the time of his failure. It was also found, that on twelve different occasions between May 24, 1890, and September 4, 1890, he sold to auctioneers in New York the entire stock of the Hanover Street store, at prices which were only forty to fifty per cent of the regular wholesale price of such goods; and the evidence tended to show that most of the goods bought between these dates were sold in this way, and boxed up and shipped away.
The principal question argued before us arises on the defendant’s request to the presiding justice to order a verdict of acquittal on the ground that there was no evidence on which he could be convicted. On each of the counts now before the court the evidence tended to show a representation by the defendant that he wanted the- goods for the purpose of selling them in the regular course of his business as a retailer of dry goods, and that he obtained them on this pretence. It is contended that such a representation is of a promissory nature, and if false and fraudulent cannot be the foundation of a conviction for obtaining goods on false pretences. The Pub. Sts. c. 203, § 60, (St. 1863, c. 248, § 2,) provide that “ whoever, with intent to defraud under false color and pretence of carrying on business and dealing in the ordinary course of trade, obtains from any person goods or chattels shall be punished,” etc. Each [594] of the counts on which the defendant was convicted is founded on this statute. They are all alike in substance, and are drawn in the very words of the statute. They allege that the defendant intended to obtain the goods under the “ false color and pretence of carrying on business and dealing in the ordinary course of trade,” and that he did falsely pretend and represent “ that he, said Drew, w’as then and there carrying on the business of selling dry goods, wares, and merchandise at retail in two certain stores there in said Boston, and then and therein in said business dealing in the ordinary course of retail trade; that he, said Drew, was then and there dealing in dry goods, wares, and merchandise in the ordinary course of retail trade, and in the manner in which dealers usually conduct and carry on such business.” Then follow allegations of pretences, all of which are merely the particulars and details which made up this general representation and pretence, and it is alleged that by these false representations and pretences he obtained the goods. It seems very clear that each of these counts was intended to charge an offence under this section, and under no other, and the allegations are sufficient for that purpose.
The false pretence made punishable under this section relates not merely to the general mode of dealing of him who makes it, but to the nature of the transaction in which he is then engaged. If he is the proprietor of a retail store, and buys goods in the usual way to be sold therein, he is “ carrying on business and dealing in the regular course of trade ”; but if he buys goods to be carried away and sold at wholesale for half their value he is not “ dealing in the ordinary course of trade.” The representation of his intention in regard to the disposition of the property may be an important element in the pretence that he is dealing in the ordinary course of trade.
Indeed, it may be the characteristic and distinguishing feature of the false pretence. The act of purchase, in its external features, is the same whether it is in the ordinary course of dealing, or a wrongful procurement of property with intent to defraud. The intention of the purchaser in reference to the disposition of the goods makes it the one or the other, and his statement of that intention, in connection with a representation that he is the proprietor of a retail store, may be in itself a statement that he [595] is dealing in the ordinary course of trade, or that he is not, according as he says that he expects to sell the goods in his store in the usual way, or that he intends to devote them to a different kind of use. Under this section, therefore, it must be held to be a statement of a fact, and not a promise, or a mere expression of a purpose. Commonwealth v. Walker, 108 Mass. 309.
The evidence on each of the counts was sufficient to warrant the jury in finding that the defendant made the false pretence mentioned in this section. To constitute the offence, it is not necessary that the pretence should be made in the express words set out in the statute. It is enough if it is plainly and intelligibly made in any form of words. There was also evidence on each count tending to show that this pretence was the inducement which led to the sale. The evidence of the witnesses as to what led them to make the several sales was properly admitted.
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Knowlton, J.
The evidence in this case tends to show that for several years prior to J une 1, 1890, the defendant had been in the business of selling dry goods at retail, having all the time one store, and during the last part of the time two stores, in Boston; that up to that date he paid cash for substantially all dry goods purchased, but after that, until his failure on September 6, 1890, he made large purchases from numerous persons, all on long terms of credit, none of which had expired at the time of his failure. It was also found, that on twelve different occasions between May 24, 1890, and September 4, 1890, he sold to auctioneers in New York the entire stock of the Hanover Street store, at prices which were only forty to fifty per cent of the regular wholesale price of such goods; and the evidence tended to show that most of the goods bought between these dates were sold in this way, and boxed up and shipped away.
The principal question argued before us arises on the defendant’s request to the presiding justice to order a verdict of acquittal on the ground that there was no evidence on which he could be convicted. On each of the counts now before the court the evidence tended to show a representation by the defendant that he wanted the- goods for the purpose of selling them in the regular course of his business as a retailer of dry goods, and that he obtained them on this pretence. It is contended that such a representation is of a promissory nature, and if false and fraudulent cannot be the foundation of a conviction for obtaining goods on false pretences. The Pub. Sts. c. 203, § 60, (St. 1863, c. 248, § 2,) provide that “ whoever, with intent to defraud under false color and pretence of carrying on business and dealing in the ordinary course of trade, obtains from any person goods or chattels shall be punished,” etc. Each [594] of the counts on which the defendant was convicted is founded on this statute. They are all alike in substance, and are drawn in the very words of the statute. They allege that the defendant intended to obtain the goods under the “ false color and pretence of carrying on business and dealing in the ordinary course of trade,” and that he did falsely pretend and represent “ that he, said Drew, w’as then and there carrying on the business of selling dry goods, wares, and merchandise at retail in two certain stores there in said Boston, and then and therein in said business dealing in the ordinary course of retail trade; that he, said Drew, was then and there dealing in dry goods, wares, and merchandise in the ordinary course of retail trade, and in the manner in which dealers usually conduct and carry on such business.” Then follow allegations of pretences, all of which are merely the particulars and details which made up this general representation and pretence, and it is alleged that by these false representations and pretences he obtained the goods. It seems very clear that each of these counts was intended to charge an offence under this section, and under no other, and the allegations are sufficient for that purpose.
The false pretence made punishable under this section relates not merely to the general mode of dealing of him who makes it, but to the nature of the transaction in which he is then engaged. If he is the proprietor of a retail store, and buys goods in the usual way to be sold therein, he is “ carrying on business and dealing in the regular course of trade ”; but if he buys goods to be carried away and sold at wholesale for half their value he is not “ dealing in the ordinary course of trade.” The representation of his intention in regard to the disposition of the property may be an important element in the pretence that he is dealing in the ordinary course of trade.
Indeed, it may be the characteristic and distinguishing feature of the false pretence. The act of purchase, in its external features, is the same whether it is in the ordinary course of dealing, or a wrongful procurement of property with intent to defraud. The intention of the purchaser in reference to the disposition of the goods makes it the one or the other, and his statement of that intention, in connection with a representation that he is the proprietor of a retail store, may be in itself a statement that he [595] is dealing in the ordinary course of trade, or that he is not, according as he says that he expects to sell the goods in his store in the usual way, or that he intends to devote them to a different kind of use. Under this section, therefore, it must be held to be a statement of a fact, and not a promise, or a mere expression of a purpose. Commonwealth v. Walker, 108 Mass. 309.
The evidence on each of the counts was sufficient to warrant the jury in finding that the defendant made the false pretence mentioned in this section. To constitute the offence, it is not necessary that the pretence should be made in the express words set out in the statute. It is enough if it is plainly and intelligibly made in any form of words. There was also evidence on each count tending to show that this pretence was the inducement which led to the sale. The evidence of the witnesses as to what led them to make the several sales was properly admitted.
It is contended that the schedule of the defendant’s creditors, signed and sworn to by him, and filed in the Court of Insolvency on September 27, 1890, should not have been received in evidence. It was an admission by him of the statement set out in it, and was an act which, if it had any significance in regard to these charges, was rightly brought to the attention of the jury. It related to his condition on September 6, 1890; for the case finds that he failed then, and did no business, and presumably contracted no large debts afterwards. There was evidence that he was in good credit on June 1, 1890, and that up to that time he regularly paid cash for all dry goods he purchased. In Commonwealth v. Jeffries, 7 Allen, 548, it was held, after much consideration, that in a case of this kind the fact of the defendant’s insolvency at the time of obtaining the goods was important evidence on the question whether he had a fraudulent intent. In the present case the pretence set out in the twenty-third count is alleged to have been made on August 23, 1890, only fourteen days before the failure, and we have no doubt that it was within the discretion of the presiding judge on the evidence in the case to admit the schedule, on the ground that it tended to show what his financial condition was on August 23. There was no attempt to distinguish between the applicability of the evidence to this count, and to the counts relating to transactions earlier in the [596] summer; and if there had been, we are not prepared to say that there was not enough in the case to warrant the judge in his discretion in receiving it as indicating the defendant’s financial condition in June, 1890. Besides, there were other counts in the indictment on which he was not convicted, charging offences of the same kind as late as September 4, 1890. We are of opinion that the evidence was also competent on an entirely independent ground. The case finds that a man who had previously paid cash for his purchases buys large lots of goods, worth many thousands of dollars, and pays nothing for them, but obtains long terms of credit on all the purchases, and, instead of selling them at retail in the usual way, disposes of them for less than half their value. This indicates a general scheme of fraud, and we are of opinion that the additional fact that, within about three months after the first of these transactions, he goes into insolvency and files a schedule showing a very large indebtedness against him, is competent to be considered as confirmatory evidence of his fraudulent purpose in devising the scheme and obtaining the goods. Exceptions overruled.