Stearn v. Clifford

62 Vt. 92

• Court: Supreme Court of Vermont
• Decided: October 15, 1889
• Status: Published

Opinion

The opinion of the court was delivered by

Rowell, J.

It was competent to show that before the making of the alleged fraudulent representations by the defendant, the plaintiff had loaned him money without security and without inquiry as to his financial condition and credit, and that the loans were promptly paid, and that at the time in question plaintiff was not aware of any change in defendant’s financial ability, as tending to show that plaintiff did not rely upon said representations in giving the credit here involved, but relied on his knowledge and estimate of defendant’s worthiness of credit as derived from his experience in dealing with him in this behalf.

Defendant’s general reputation as to solvency, if known to plaintiff, would have been admissible for the same purpose. But, as it was not known to plaintiff, the question put to him about it goes for nothing.

Plaintiff had given evidence tending to show that defendant, was insolvent when he made said representations and that he knew it. It was competent, therefore, for the defendant to go into that subject, and in doing so, to go back a reasonable time in his financial history, but how far he should go back rested largely in the discretion of the trial court, and we cannot say that that discretion was transcended.

One ground on which plaintiff sought to recover was, that defendant procured the property sued for with preconceived design of not paying for it. As tending to show this, among other things, he showed that defendant petitioned himself into insolvency on February 2, 1888, and drew from defendant, on cross-examination, the amount and character of his indebtedness at the time of filing his petition, and especially that lie owed! his uncle a debt on which he paid $100 the August before, and ahorse at $175, and $90 in money, the first of January before, and owed his father-in-law, as administrator, a debt on which he had paid $115. The fact of his going into insolvency so soon after these payments, afforded ground for inference that he intended to prefer his uncle and father-in-law to his other creditors, and that he procured the property with the design claimed. Therefore, as tending to rebut this inference, it was competent for the defendant, on re-examination, to explain that he went into insolvency, not for.the purpose claimed, but to dissolve his uncle’s attachment and compel an equal distribution of his property among his creditors.

As to the motion to set aside the verdict, it is sufficient to say that as far as it was based upon the ground that the verdict was against evidence, it was addressed to the discretion of the trial court, and its action thereon is not revisable on exceptions. Newton v. Brown, 19 Vt. 16. And as to the verdict being against law, it- does not appear that it was. The motion for a judgment non obstante <£ on the undisputed evidence in the case,” was properly overruled. The ££ undisputed evidence ” did not • appear of record, and that was a sufficient answer to the motion; for such a motion is based upon the record, and reaches nothing dehors it. Snow v. Conant, 81 Vt. 301.

Judgment afir'med.