Smith v. Schroeder

22 F. Cas. 650, 21 Law Rep. 739

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: July 1, 1858
• Status: Published

Opinion

CURTIS, Circuit Justice.

The first and most comprehensive objection made to the rulings of the judge at the trial is, that the title of the plaintiff depends upon the deed which was put in evidence; that this limits him to such machinery as was actually on the premises at the date of the deed, or had then been removed therefrom for repairs; and that instead of leaving to the jury the question whether the rolls were then on the premises, or had then been removed for repairs, the judge left it to them, in substance, to inquire whether the defendant led the plaintiff to believe the rolls were on the premises, and having induced him to contract for them with the other property, secretly removed them in order to prevent them from passing by the deed; and that if this was so they were to be deemed to be included in the deed. I am of opinion this instruction was correct. The law is settled certainly in this court by the cases of Philadelphia, W. & B. R. Co. v. Howard, 13 How. [54 U. S.] 307, and Hawes v. Marchant [Case No. 6,240], as it previously was in England by the cases of Pickard v. Sears, 6 Adol. & E. 469; Coles v. Bank of England, 10 Adol. & E. 437; Freeman v. Cooke, 2 Exch. 654; and it has been held in several state courts of the highest respectability that if a party wilfully misrepresents a state of things, and induces another to act on a belief in the truth of his representation, and that person does so act upon it to his prejudice, the party who makes the misrepresentation is precluded from showing it to be a misrepresentation, as against him it is in judgment of law true. This case falls under that rule; for though when the defendant originally represented the rolls to be on the premises they were there, this representation not having been withdrawn must be taken as a continuing representation, and operative at the very time of the contract, when the defendant knew it to be false, and must have designed to mislead the plaintiff, because he himself had previously removed the rolls.

This disposes not only of the objections to the instructions of the court to the jury on this part of the case, but also the exceptions taken to the admission of evidence respecting it; and among others, of the exception on account of the admission of other deeds made by the defendant to the plaintiff, simultaneously with the deed in question. These, in connection with the other evidence, had a legitimate tendency to satisfy the jury of the fraudulent purpose of the defendant; the argument being, that he resorted to three deeds of conveyance, instead of one, so that he could avail himself of the limitation in •the description of the machinery conveyed, requiring it to be on the premises described in that deed. The other deeds were therefore proper to be known to the jury, who might consider them part of the defendant’s scheme of fraud.

The other ground relied on was, that the evidence of the authority of McCabe to exhibit the schedule to the plaintiff was not competent. It appeared in evidence that Mc-Cabe was not only the principal clerk and bookkeeper of the defendant, and also conducted some of his out-door business, but that he actually conducted, on the part of the defendant, the negotiations which resulted in the sale in question. And so far as appeared, he alone conducted them, without the intervention of the defendant. It was therefore proper to leave it to the jury to find whether, when McCabe, in the course of the negotiations, furnished a schedule of the property, he did so with the knowledge and consent of the defendant. It was not incompetent for the jury to infer from the circumstances that the principal was actually cognizant of the act of his clerk in taking so important a step in the negotiations as to furnish a schedule of the property to be sold, the clerk himself being dead at the time of the trial, the defendant and his principal clerk being, from their relation, in daily communication with each other while the negotiations were going on, and the defendant having acted on the result of the clerk’s negotiations, of which this schedule formed an essential part.

The motion for a new trial is overruled, and judgment' must be rendered on the verdict.