Morrison, Herriman & Co. v. Adoue & Lobit

13 S.W. 166, 76 Tex. 255, 1890 Tex. LEXIS 1247

• Court: Texas Supreme Court
• Decided: February 18, 1890
• Docket: No. 2722
• Status: Published

Opinion

STAYTOH, Chief Justice.

August 23, 1887, appellants, merchants doing business in the city of Hew York, sold goods to O. W. Hordholtz & Co., a firm doing business in this city, who-about September 1 placed the goods bought on credit among their general stock, from which they sold in ordinary course of trade until about September 19, when they sold their entire stock to the many defendants in settlement of debts for the most part due when the goods were bought from appelpellants.

After the sale was made by Hordholtz & Co. appellants demanded the goods sold by them before appellees had disposed of them, claiming the right to avoid the sale on the ground that Hordholtz & Co. had induced them to sell the goods by fraudulent statements as to the assets and liabilities of that firm.

Appellees refused to deliver the goods, and this action was brought-against them to recover, as for the conversion, the petition setting out the goods on which appellants claimed the right to avoid the sale.

The statement on account of which the sale was made and credit given was as follows:

“N. Y., 8—23rd, 1887.

“ The following statement is made by me to Morrison, Herriman & Co. as a basis of credit on this and all future purchases by

“Name, G. W. Nordholtz & Go.

“Residence, Galveston, Texas.

“ASSETS.

“Aug. 5th, ’87.

Stock at value..........................................$38,987 42

Outstanding accounts, good.............................. 4,972 45

Cash in hand and in bank............................... 385 00

Total................................................$44,344 87

“LIABILITIES.

Owe for mdse, on open account, ) .

Owe for mdse, settled by note, • j .......... ’ °

Borrowed money............................ 10,180 00

Other debts, bank........................... 3,000 00—$17,930 26

Surplus.............................................$26,414 61

■“ Indebtedness past due, none.

“Indebtedness extended, part of Claflin’s account, say $1500.

“Insured for $30,000.

“Sales for cash, )

“Sales for credit, j ^ ’°°0-

“Rent, $2400.

“ Other expenses, reduced considerably from last year, ab’t.

“Buying altogether 5 /6000.

[Signature] - “G. W. Nordholtz & Co.”

It is shown that goods sold from the entire stock of Nordholtz & Co., from the time of the purchase in question until the transfer to appellees, amounted to about $5000. After the transfer was made an inventory was taken by appellees, or under their direction, in the taking of which neither member of the firm of Nordholtz & Co. was permitted to be present or to participate. That inventory showed stock on hand not exceeding $32,000 in value.

But three witnesses testified, and only two of them knew anything about the value of the stock when statement was made by-Nordholtz & Co., or when transferred to appellee. G. W. Nordholtz stated: “When I left Galveston for New York in 1887 the stock of G. W. Nordholtz & Co. was worth about as much as was shown by statement, viz., $38,987.42, and the other items given in the statement were approximately correct at the time as given.”

He, however, admitted an indebtedness of $31,000 existing before he went to Hew York, and at the time he made the statement, and it was conceded by defendants that a further indebtedness, which he denied, amounting to $3550.46, then existed.

The other member of the firm of Hordholtz & Co. testified as follows: “1 was the partner of G-. W. Hordholtz in the firm of G. W. Hordholtz & Co., and am executor without bond of the estate of Ferdinand Emme, deceased. Hordholtz did the buying for the firm, and for that purpose went to Hew York in 1887, while I remained in the store. Ho account of stock was taken before Hordholtz’s departure for Hew York in August, 1887, and none had been taken since January 1 of that year. When Hordholtz left for Hew York in August, 1887, the stock on hand was not worth more than $33,000 or $33,000. Very few goods had been bought by the firm for a year prior to August, 1887, as business had not been good, and I had done all I could to restrain Hordholtz from incurring new obligations for the firm. I had told him that we must stop buying except as should be absolutely necessary, and that when we did buy it should only be from home people, and in small quantities at a time. Previous to and while Hordholtz was in Hew York, in August, 1887, the sales were very light. The year had been a very bad one, and sales light, particularly in July, August, and September, which are always dull months. At the time Hordholtz went to Hew York in August, 1887, the firm was indebted to Albert Sundt $3600 of the $3005.40 owing to him at the date of the transfer to defendants, viz., September 19, 1888; to Mrs. Ernestine Schulte, $1500; 'to Texas Banking and Insurance Company, $500; to Ball, Hutchings & Co., $600 (which was, as was also the debt to the Texas Banking and Insurance Company, a renewal of a pre-existing debt); to H. Miller, $1700; to L. & H. Blum, at least $600; to P. J. Willis & Bro., at least $773; to Adoue & Lobit, at least $3000; to the estate of Ferdinand Emme, $13,000, including principal and interest; to Charnock & Co., $800; and to Mrs. Wright, $5000. While gone in 1887 Hordholtz bought between $8000 and $9000 worth of goods, which were received in •stock by Hordholtz & Co. on about September 1, 1887. The statement made by Hordholtz, August 33, 1887, which is attached to the deposition of E. M. Post in this case, is greatly exaggerated. The value of the stock as stated therein is greatly above what its true value was. The indebtedness of the firm is underestimated, and of the outstanding accounts, stated to be $4900, all of which was asserted in the statement to have been good, not more than fifty cents on the dollar could have been collected. I assisted in taking the inventory of stock after the transfer for three days, when objection was made by the defendants to my being present, and I was excluded from the store. The inventory was taken at invoice prices while I was there, and when I saw it, two or three days after its completion, footed up $31,000 or $33,000.”

Cross-examined the witness said: “ The debt of the firm to the Em me estate amounted to $12,000 at the time Nordholtz went to New York. My statements as to amounts of our indebtedness, amount of stock, and other figures are my recollection and belief. I was familiar with the stock and indebtedness of the firm, and had entire charge of the business while Nordholtz was gone.”

From the evidence it will be seen that the indebtedness of the firm at the time statement was made was largely in excess of sum stated; and while Nordholtz did not state all the indebtedness, he did not question the accuracy of his partner’s statement, which showed an indebtedness exceeding $28,000. If the statement of the other partner is correct, the statement of assets made to appellants was largely in excess of all owned by the firm, and the inventory made by appellees, or under their direction, tends to corroborate the testimony of that witness.

As Nordholtz and partner were not permitted to be present and to participate in making inventory of stock at time appellees bought, the latter can not well question its accuracy.

When we take into consideration the fact that Nordholtz bought $8000 or $9000 worth of goods while in New York, at the time he bought from appellants, and that those goods went into the stock bought by appellees, it is evident that the statement of stock on hand August 23 was excessive.

If we add to the amount then stated $8000, we have $46,987.42, from which, if we deduct $5000 on account of sales, there ought to have been on hand when appellees bought $41,987.42, when in fact, from inventory taken when appellees bought, there was not more 'than $32,000 in stock on hand.

These facts show that the statement as to assets and liabilities was incorrect, and both so in the direction to obtain credit.

In making a statement for such a purpose the partner making it ought not to be heard to say that he was ignorant as to the condition of the firm business, for it was his duty to know, and to make no statement not substantially correct, when he knew that the seller was to be influenced by it.

The evidence shows that early in 1887 appellants had refused to fill an order made by Nordholtz & Co., because the business up to that time had not been statisfactory, but that the firm afterwards paid sum due, when appellants determined not to reopen an account, but were induced to do so by the favorable statement made August 23, 1887.

The cause was tried without a jury, and we have not the benefit of the judge’s conclusions of fact and law.

Appellees answered by demurrers and by general denial, and did not plead that they were innocent purchasers, though in their brief it is suggested that under the facts proved such is their character.

It is well settled that a seller who. is induced to sell by a false statement of material fact or facts made by the buyer, is entitled to avoid the sale in all cases in which the false statement is made with knowledge of its falsity by the person making it.

A false statement made by a buyer who has full opportunity to know whether it is true or not, in reference to a material fact, although it may not be actually known by him to be false, also furnishes ground for avoidance of the sale if it be made when he has no reason to believe it to be true.

In the case before us it is shown that the person who made the representations which induced appellants to sell, was an active partner in the purchasing firm, and that by use of the means within his reach he could and ought to have known that his statements were not substantially true. A person so situated ought not to be heard to say that he does not know what his firm owns and owes. He must be held to have made a statement as to the assets and liabilities of his firm known by him to be untrue, or to have made the statement recklessly, without making that inquiry which good faith required he should make before making a statement intended to influence and which he knew would influence the sellers..

In either case appellants were entitled to avoid the sale so long as the goods sold were in the hands of the purchasing firm, or in the hands of any person not a bona fide purchaser.

Appellees having purchased solely in payment of existing debts, can not claim to be such purchasers, although they may have known nothing of the untrue statements which induced appellants to sell to Hordholtz & Go.

Appellees having refused to deliver the goods sold by appellants to Hordholtz & Co., although demanded before they had disposed of any of them, it is the right of the latter to recover their value; but as the case is presented this court can not, with certainty of doing justice, render a judgment.

Appellees are liable only for the value of such goods sold by appellants as were received by them, and in the absence of evidence showing what part of the goods they did receive, or that this can not now be accurately ascertained, resort should not be had to presumptions which may be drawn from facts proved.

What goods appellants sold to Hordholtz & Co. is shown, and their value may, no doubt, be established with reasonable accuracy. It is, however, rendered probable that some of the goods may have been sold in ordinary course of business, before the sale to appellees. If so, appellees have or ought to have it in their power to show what was sold by showing what they received, for they received all that had not been sold before their purchase.

At the time appellees were notified of appellants’ election, to avoid the sale they still held the goods, and their refusal to deliver them made them wrongdoers — against whom, in the absence of direct evidence, much ought to be presumed.

When demand was made they became aware of the right of appellants, and then had it in their power to ascertain with accuracy, so far as the record shows, what goods belonging to appellants they held.

It seems to ns that it then became their duty to ascertain that fact, and if they failed to do so and sold the goods to other persons, thereby depriving appellants of the power to show what goods came into their hands, then they ought to be held liable for the value of all the goods sold by appellants to Hordholtz & Co.

The burden of proof ought to rest on appellees to show what goods they received; and, as the case now appears from the record, if they fail to do this, judgment ought to be rendered against them for the full value of the goods sold to their vendors by appellants. Preston v. Lighton, 6 Md., 97; Whart. Law of Ev., 1265, 1266; 1 Greenl. Ev., 37.

The judgment will be reversed and the cause remanded, that both parties may have opportunity so to present the case that justice between them may be done.

Reversed and remanded.

Delivered February 18, 1890.