Morgan v. Skidmore

55 Barb. 263, 1869 N.Y. App. Div. LEXIS 91

• Court: New York Supreme Court
• Decided: November 1, 1869
• Status: Published

Opinion

Clerke, P. J.

The question, relative to the giving of costs to the plaintiffs, against the executor, was considered on the appeal from the order denying a new trial. So that the only question left on this appeal is, whether an action of tort can be maintained against a person, or his representative, for deceit, in making false representations as to the solvency of a mercantile firm of which he was a member, when a judgment has already been recovered against the firm (and of course against him jointly with the others) for the price of the goods sold on credit to the firm by the plaintiffs in consequence of those misrepresentations ?

It is contended by the counsel of the defendants, that to allow the maintenance of this action, under such cir-* cumstances, is to ignore the rule that while the partnership estate is. primarily liable to the partnership creditors, the individual estate is primarily liable to the individual creditors. This would be a valid objection if, in this action, the plaintiffs sued as creditors of the deceased; for such a claim would be inconsistent with the claim on which their former action was founded. In that, they alleged, in substance, that he was jointly and not severally liable with the others. Such an allegation would be manifestly at variance with any claim against him, severally, as an individual, for the same debt. But the present action is in no respect, except in amount, identical with the former. The defendant is sought to be made liable for the conduct of the deceased, as a wrongdoer, and not as a debtor. If the deceased had made the alleged false representations in relation to the solvency of another firm—one with which he was in no way connected—he would, of course, be liable; and the value of the goods sold would be the measure of the damages. The remedy, in such a case, would be more efficacious than an ordinary action to recover the amount of the debt; for the plaintiff would be entitled to an order of arrest, and. to an execution against the person of the defendant, in case no property could be found, to satisfy the first execution. The fact that the false representations were made in relation to the solvency of a firm of which the defendant was himself a member, cannot change the nature of the offense,

[New York General Term, November 1, 1869.

. or the rights of the injured party. He is equally a wrongdoer ; and they equally suffer from the wrong, and are therefore entitled to any advantage which the law allows against a wrongdoer, over and above what the' law allows against an ordinary debtor. The rule that the creditors of a partnership will not be permitted to reach, the individual estate of a deceased partner until all the separate creditors are satisfied, applies only to cases founded on the "relation of debtor and creditor, and cannot interfere with , the remedy against any individual, or his estate, as a wrongdoer. The judgment should be affirmed, with costs.

Cardozo, J., concurred.

Sutherland, J., dissented.

Judgment affirmed.

Clerke, Sutherland and Cardozo, Justices.]