Mann v. Pusrin

158 N.Y.S. 906

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 9, 1916
• Status: Published

Opinion

LEHMAN, J.

The plaintiff, on or about July 15, 1915, sold to the defendant Pusrin a package of diamonds. The defendant Pusrin was insolvent on that date, and on July 25th made an assignment for the benefit of creditors to the defendant Pike. The plaintiff has replevined these diamonds, claiming that he was induced to sell to the defendant Pusrin by fraudulent representations as to his solvency.

[ 1 ] The only issue presented by the pleadings or the proof is whether the defendant made these fraudulent representations. The learned trial justice, however, by his charge, injected into the case another issue, and told the jury that they must find in favor of the plaintiff, if they find that Pusrin, when he bought the diamonds, knew that he was insolvent. Both sides are agreed that this is an incorrect statement of the law, and that an action for replevin can be maintained only where the purchaser acted fraudulently, either by making express representations which were fraudulent, or by purchasing the goods, not only with knowledge of his insolvency, but with the intention not to pay for the goods.

[2] The defendant's counsel duly excepted to the charge, and pointed out to the trial justice that it was inaccurate as a matter of law. The trial justice did not withdraw this portion of the charge; but he did, at the defendant’s request, subsequently charge:

“That the mere fact that Mr. Pusrin was insolvent on that day does not mean that he did not intend to pay for the goods, and that, if it can be found that he had an intent to pay, the contract is not vitiated unless he made those statements.”

These statements, charged at the request of the defendant, did not cure the original error. The jury were still left to consider an issue not raised by the pleadings, nor by the proof, for there is absolutely no evidence from which tbe jury could properly infer that Pusrin bought the diamonds with the intention not to pay for them.

[3] The trial justice also erred in telling the jury that they might consider, upon the question of the credibility of the parties, the fact that the notes which the defendant gave in payment for the diamonds bear no indorsements, and therefore could not have been negotiated. The defendant, as a matter of fact, never claimed that they had been negotiated, and no reasonable inference as to the truth of the defendant’s story could be drawn from the fact that the notes could not in fact have been negotiated.

Judgment, therefore, should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.