By the Court.
Lumpkin, J.
delivering the opinion.
Isaac P. Brooks, at that time a resident of Albany, Baker county, on the eighth day of November, eighteen hundred and forty-four, applied for and obtained from Jonathan Hall of the same place, a letter of credit, addressed to Messrs. S. Holcomb & Co., of Savannah, in the following terms, to wit: “ Gents. Permit me to introduce to your acquaintance' Col Isaac P. Brooks of this [97]*97place. Col. Brooks visits your city for business purposes, and any negotiations be may propose, or engagements be may make, will be entitled to tbe fullest confidence. He is a gentleman of strict integrity and honor, and any favor rendered or facilities afforded him in tbe furtherance of bis wishes, will be duly appreciated and thankfully acknowledged by your most obedient Servant,” (signed) “ Jonathan Hall.” This letter was delivered to Thomas Holcomb, one of the late firm of T. Holcomb & Co., to whom it was addressed, some eight or ten days after its date, who, having discontinued business, took the letter to the plaintiff, William M. Young, and read it to him, and remarked, that ho thought the bearer must be trust-worthy, or else Hall, who was a man of prudence and integrity, would not have thus recommended him. Young, relying upon these representations, furnished Brooks goods to the amount of $5S1 34, and took his promissory notes in settlement of the account. But Brooks proving to be utterly insolvent, and notoriously so at tbe time of this transaction, there being executions against him with a return by the sheriff on them of “ no property to be found,” William M. Young commenced an action of Deceit in the Superior Court of Thomas county, against Jonathan Hall, upon the false and fraudulent representations contained in his letter, respecting the character, conduct and credit of Brooks. In addition to the foregoing facts, the plaintiff proved, on the trial, that Brooks opened a store in Albany with the goods bought in Savannah, in tbe name of H. & W. H. Brooks, but shortly thereafter lie removed the stock to another store, across the st; eet, which had the name of “ J. Hall” over'the door. Witness further testified, that Jonathan Hall, the defendant, had usually controlled the store.
Isaac P. Brooks was offered and sworn in behalf of the defendant, the court having overruled the objection to his competency. He stated that the letter was written by him at the request of the defendant, who is an illiterate man, and defendant’s name signed by bis authority; that he read the letter to the defendant, who said to the witness, that he was willing to give him a letter of introduction, but none other; and who charged witness not to write anything, that would bind him. Plaintiff’s counsel objected to the sayings of defendant to witness, unless heard by the plaintiff or communicated to him ; but was overruled by the Court.
His Honor Judge Scarborough, before whom this cause was [98]*98tried, charged the jury, with his accustomed point and precision, “ That there were several requisites to be shown by the plaintiff, in order to entitle him to recover. First, that they must be satisfied from the testimony, that the defendant made the representations contained in the copy letter, which had been adduced in evidence, falsely and fraudulently. Secondly, that defendant, at the time, of making the representations, knew them to be false.— Thirdly, that the defendant in making the representations, either intended to benefit himself or to deceive or injure some other person. Fourthly, that the party suing must prove he acted upon the faith of such representations, having sold goods on account of them and thereby lost his debt. That all these facts must be alleged in the declaration, and proven to the satisfaction of the jury. That the very foundation of the action, was fraud and deceit in the defendant, and damage to the plaintiff. That fraud without damage, or damage without fraud, gives no cause of action, but when these two concur, the cause of action is complete.” His Honor, the presiding Judge, further charged, “ That in ascertaining the fraudulent character of the representations, the jury were authorized to enquire into the situation and character of Brooks at the time, the relationship and intimacy of Brooks and defendant, the capacity or incapacity of the defendant to understand the force and effect of the letter which he gave, and the whole circumstances as disclosed by the testimony under which it was obtained, and the intent with which he gave it.”
And the jury finding for the defendant, the plaintiff by his counsel excepted to the instructions.
It appears then from the record, that three questions are submitted to this court; namely:
1st. The competency of Isaac P. Brooks, as a witness for Hall the defendant.
2d. The admissibility of the declarations of Hall to Brooks, at the time the letter of credit was written, as a part of the res gestee.
3. The propriety of the instructions given to the jury.
[1.] To exclude a witness on the ground of interest, he must be interested in the event of the suit; the verdict must establish something in his favor or against him; and it is not sufficient that he is interested in the question merely. If there be a recovery against Hall, it must be upon the fact Of the fraud which he has [99]*99enabled Brooks to perpetrate. It does not occur to the court upon what principle Brooks will be liable over to Hall, even for costs. In Bucknam vs. Goddard, 21 Pick. Rep. 70, it seems that the plaintiff sold goods to Aldrich & Co. on a credit. Aldrich & Co. immediately sold them again to the defendant; and the plaintiff brought replevin for them, on the ground that they had been obtained of him through the fraud of Aldrich & Co. and the defendant. The Supreme Court of Massachusetts held that Al-drich & Co. were competent witnesses for Goddard, the defendant.
[2.] Upon the second ground, I would remark that the sayings of parties are often admitted in evidence, it is true, as constituting a part of the transaction which is the subject of inquiry ; the meaning of which seems to be, that where it is necessary in the course of a cause to inquire into the nature of a particular act, or the intention of the person who did the act; proof of what the person said at the time of doing it is admissible in evidence for the puipose of showing its trae character. But this rule, we apprehend, does not apply to a case like the present. It is not denied but that the letter of credit is the act of the defendant, Brooks; his own witness testifies that it was written by his direction, and read to him. Admit that he did not comprehend its legal import, can his ignorance excuse him ? Surely not. Must the plaintiff suffer from Ms want of capacity to understand the terms of his own letter ? Or can his declarations, made to the witness at the time, and which it is not pretended were communicated to Young, vary the meaning of that letter % To our mind, it is clear that they can not.
In Murray vs. Bethune, 1 Wend. Rep. 196, a much stronger ease in favor of such admissions, Sutherland, J. in delivering the opinion of the Supreme court, remarks: “ The mere understanding of one
Free access — add to your briefcase to read the full text and ask questions with AI
By the Court.
Lumpkin, J.
delivering the opinion.
Isaac P. Brooks, at that time a resident of Albany, Baker county, on the eighth day of November, eighteen hundred and forty-four, applied for and obtained from Jonathan Hall of the same place, a letter of credit, addressed to Messrs. S. Holcomb & Co., of Savannah, in the following terms, to wit: “ Gents. Permit me to introduce to your acquaintance' Col Isaac P. Brooks of this [97]*97place. Col. Brooks visits your city for business purposes, and any negotiations be may propose, or engagements be may make, will be entitled to tbe fullest confidence. He is a gentleman of strict integrity and honor, and any favor rendered or facilities afforded him in tbe furtherance of bis wishes, will be duly appreciated and thankfully acknowledged by your most obedient Servant,” (signed) “ Jonathan Hall.” This letter was delivered to Thomas Holcomb, one of the late firm of T. Holcomb & Co., to whom it was addressed, some eight or ten days after its date, who, having discontinued business, took the letter to the plaintiff, William M. Young, and read it to him, and remarked, that ho thought the bearer must be trust-worthy, or else Hall, who was a man of prudence and integrity, would not have thus recommended him. Young, relying upon these representations, furnished Brooks goods to the amount of $5S1 34, and took his promissory notes in settlement of the account. But Brooks proving to be utterly insolvent, and notoriously so at tbe time of this transaction, there being executions against him with a return by the sheriff on them of “ no property to be found,” William M. Young commenced an action of Deceit in the Superior Court of Thomas county, against Jonathan Hall, upon the false and fraudulent representations contained in his letter, respecting the character, conduct and credit of Brooks. In addition to the foregoing facts, the plaintiff proved, on the trial, that Brooks opened a store in Albany with the goods bought in Savannah, in tbe name of H. & W. H. Brooks, but shortly thereafter lie removed the stock to another store, across the st; eet, which had the name of “ J. Hall” over'the door. Witness further testified, that Jonathan Hall, the defendant, had usually controlled the store.
Isaac P. Brooks was offered and sworn in behalf of the defendant, the court having overruled the objection to his competency. He stated that the letter was written by him at the request of the defendant, who is an illiterate man, and defendant’s name signed by bis authority; that he read the letter to the defendant, who said to the witness, that he was willing to give him a letter of introduction, but none other; and who charged witness not to write anything, that would bind him. Plaintiff’s counsel objected to the sayings of defendant to witness, unless heard by the plaintiff or communicated to him ; but was overruled by the Court.
His Honor Judge Scarborough, before whom this cause was [98]*98tried, charged the jury, with his accustomed point and precision, “ That there were several requisites to be shown by the plaintiff, in order to entitle him to recover. First, that they must be satisfied from the testimony, that the defendant made the representations contained in the copy letter, which had been adduced in evidence, falsely and fraudulently. Secondly, that defendant, at the time, of making the representations, knew them to be false.— Thirdly, that the defendant in making the representations, either intended to benefit himself or to deceive or injure some other person. Fourthly, that the party suing must prove he acted upon the faith of such representations, having sold goods on account of them and thereby lost his debt. That all these facts must be alleged in the declaration, and proven to the satisfaction of the jury. That the very foundation of the action, was fraud and deceit in the defendant, and damage to the plaintiff. That fraud without damage, or damage without fraud, gives no cause of action, but when these two concur, the cause of action is complete.” His Honor, the presiding Judge, further charged, “ That in ascertaining the fraudulent character of the representations, the jury were authorized to enquire into the situation and character of Brooks at the time, the relationship and intimacy of Brooks and defendant, the capacity or incapacity of the defendant to understand the force and effect of the letter which he gave, and the whole circumstances as disclosed by the testimony under which it was obtained, and the intent with which he gave it.”
And the jury finding for the defendant, the plaintiff by his counsel excepted to the instructions.
It appears then from the record, that three questions are submitted to this court; namely:
1st. The competency of Isaac P. Brooks, as a witness for Hall the defendant.
2d. The admissibility of the declarations of Hall to Brooks, at the time the letter of credit was written, as a part of the res gestee.
3. The propriety of the instructions given to the jury.
[1.] To exclude a witness on the ground of interest, he must be interested in the event of the suit; the verdict must establish something in his favor or against him; and it is not sufficient that he is interested in the question merely. If there be a recovery against Hall, it must be upon the fact Of the fraud which he has [99]*99enabled Brooks to perpetrate. It does not occur to the court upon what principle Brooks will be liable over to Hall, even for costs. In Bucknam vs. Goddard, 21 Pick. Rep. 70, it seems that the plaintiff sold goods to Aldrich & Co. on a credit. Aldrich & Co. immediately sold them again to the defendant; and the plaintiff brought replevin for them, on the ground that they had been obtained of him through the fraud of Aldrich & Co. and the defendant. The Supreme Court of Massachusetts held that Al-drich & Co. were competent witnesses for Goddard, the defendant.
[2.] Upon the second ground, I would remark that the sayings of parties are often admitted in evidence, it is true, as constituting a part of the transaction which is the subject of inquiry ; the meaning of which seems to be, that where it is necessary in the course of a cause to inquire into the nature of a particular act, or the intention of the person who did the act; proof of what the person said at the time of doing it is admissible in evidence for the puipose of showing its trae character. But this rule, we apprehend, does not apply to a case like the present. It is not denied but that the letter of credit is the act of the defendant, Brooks; his own witness testifies that it was written by his direction, and read to him. Admit that he did not comprehend its legal import, can his ignorance excuse him ? Surely not. Must the plaintiff suffer from Ms want of capacity to understand the terms of his own letter ? Or can his declarations, made to the witness at the time, and which it is not pretended were communicated to Young, vary the meaning of that letter % To our mind, it is clear that they can not.
In Murray vs. Bethune, 1 Wend. Rep. 196, a much stronger ease in favor of such admissions, Sutherland, J. in delivering the opinion of the Supreme court, remarks: “ The mere understanding of one of the parties to the agreement, without such understanding having been communicated or assented to by the other party, could not be given in evidence; it would be a most dangerous relaxation of the rules of evidence.”
The general doctrine which controls this action, is laid d’own by the judge in his charge with perspicuity and force. It has been fully and ably reviewed by Mr. Wallace, one of the American editors of Smith’s leading Cases, in a note to Paisley and Freeeman, 2dvol.p. 101, where all the authorities, English and American, are collated.
[100]*100[3.] And the result is, that an action on the case for a false representation, lies against one who gives a letter of recommendation of character and credit to an individual, on the strengih of which he gets credit, it being shown that the representations were false, and that the defendant knew them to be so.
[4.] And it is not necessary to show that the object of the false representation was to defraud the plaintiff in particular; if it is to give a false credit, the action is well brought by any one who happens to be injured by it.
[5.] Neither is it essential that the person making the false affirmation is to be benefitted. Haycraft vs. Creasy, 2 East, 92. Vernon vs. Keys, 12 East, 638. Paisley vs. Freeman, 3 T. R. 51. Foster vs. Charles, 6 Bingh. 396. Corbit vs. Brown, 8 Ib. 433. Polhill vs. Walker, 3 B. and Ad. 122. Langridge vs. Levy, 2 Meb. and Weesb. 519. Russell vs. Clarke's Ex’rs and others, 7 Cranch, 69. Upton vs. Vail, 7 Johns. 181. Young and Otis vs. Covell, 8 Ib. 23. Allen vs. Addington, 7 Wend. 10, reviewed, in the Court of Errors, 11 Ib. 375. Gallager and Mason vs. Bund, 6 Cowen, 346. Patten vs. Gurney, 17 Mass. 182. Tryon and others vs. Whitmarsh, 1 Metcalf, 1. Lobdell vs. Baker, Ib. 193. 3 Ib. 469. Wise vs. Wilcox, 1 Day, 22. Hart vs. Talmadge, 2 Ib. 381. Ewings vs. Calhoun, 7 Vermont, 79. Weeks vs. Burton, Ib. 67. Lord vs. Colley and others, 6 New Hampshire, 99.
[6.] The only point on which we differ from the court below, is as to the right of the jury to inquire into the capability of the defendant to understand the nature or legal import of the letter which he gave to Brooks. Under the facts and circumstances of this case, he must bo judged by the communication itself.
[7.] And if die representations there made of the character and credit of Brooks were false and unfounded, and he knew them to be so at the time, and the plaintiff trusting to them, in whole or in part, has been induced to give the credit which has resulted in the loss of his goods, his ground of action is complete.
On this account, therefore, as well as the receiving in evidence the sayings of Hall to Brooks, the judgment below must be reversed, and, a new trial awarded.