Scheftel v. Hatch 25 N.Y.S. 240, 70 Hun. 597

(70 Hun, 597.)

SCHEFTEL v. HATCH.

(Supreme Court, General Term, Fifth Department.

June 23, 1893.)

1. False Representations—Evidence.

In an action, for false representations made by defendant to plaintiff’s salesman as to the solvency of a firm to which plaintiff sold goods, and of which defendant was manager, testimony of the salesman that before he started on the trip on which he made the sale plaintiff instructed him that he had better not sell to that concern; that it had formerly paid its bills promptly, but was getting slower and slower of late, and that he did not think it safe to sell,—is admissible to show a reason why the statement of the condition of the firm was asked for.

A Same—Book Entry.

An entry in the salesman’s book, “Statement by H., [defendant] 40 M., and sold him bill,” is admissible to corroborate the salesman’s testimony as to the alleged representations n&de by defendant, where the salesman testifies that he made the entry at the time of the sale.

Appeal from circuit court.

Action by Adolph Scheftel against Jesse W. Hatch. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Affirmed.

The opinion of Mr. Justice BUMSEY, before whom the cause was tried at circuit, delivered on denying defendant’s motion for •a new trial, is as follows:

The action was brought to recover damages for false representations made by the defendant to the salesman of the plaintiff regarding the solvency of the Hatch Flexible Shoe Company, a firm of which the wife of the defendant •and the wife of his son were partners, and of which the defendant was manager, and a very large creditor. One exception only is relied upon. The •salesman, Sanders, to whom the false representation in question was said to have been made, testified that his house had been for a long time in the habit of selling goods to the Hatch Flexible Shoe Company,- but that just before he left home on the trip at which the sale was made he was instructed *241by Ms employer that he had better not sell to that concern; that they formerly paid their bills promptly, but of late they were getting slower and slower, and he did not think it safe to sell. To tMs evidence an objection was made, and the defendant excepted to its admission. There is no doubt that, as evidence of the fact stated in it, the instruction was not admissible. But I thought at the trial, and still think, that it was competent to show a reason why the statement was asked for. Ordinarily, as every one knows, when one man has been dealing with another for a long time, he is satisfied to continue Ms dealing, relying on the course of business, without bothering himself to get any statement of his debtor’s financial condition. If Sanders had said that after selling the Hatch Flexible Shoe Company goods for so long a time without question he had suddenly asked for tMs statement, that fact itself might have thrown doubt upon Ms testimony. It was material, then, for him to give the reason why he asked at this time for a statement. The fact that he was warned that the firm might not now be solvent, and that his employer so told Mm, was a sufficient reason for Ms asking Mr. Hatch for Ms financial condition, and therefore I think it was competent It clearly would have been competent for Sanders to say, if such had been the fact, that he was sent by plaintiff to get the statement; and so it was, I think, for Mm to give the reason why he asked for it. I am inclined to think, too, that the question whether the information he received at Power’s Hotel was of such a nature that be was induced by it to ask for a statement was properly answered, and that it was an error to strike out the answer. Suppose it had been shown that Sanders had been told that the Hatch Shoe Company had that day made a general assignment, would not that fact have been competent to explain his reason for asking for the statement? Suppose it had appeared that the plaintiff had never done business with the Hatch Company, can any one doubt that that fact might be shown to explain why the statement was asked for? Within the same reasoning, and for the same reason, the testimony in question was, I still think, properly admitted. See 1 GreeM. Ev. § 100, note 2; Id. § 101.

What was said to the jury about the entry in the book of Sanders being used to corroborate his testimony was strictly correct. When Sanders made the sale he certainly believed that the shoe company was solvent, and able to pay, and he had not then any reason to believe that there would be any litigation over the matter. If the entry in the book, “Statement by J. W. Hatch, 40 M., and s.old Mm bill,” was then put in the book, there is hardly any escape from the conclusion that it was a true statement of what Hatch then said, because no motive can be suggested why at that time Mr. Sanders shoMd put a false entry on that subject m Ms book. Therefore the defendant sought to throw doubt on Sanders’ statement that he made the entry when he made the order. It is qmte true, as stated by counsel, and by the court in its charge, that the entry, standing alone, was no evidence. It derived its importance, if it had any, from the fact that it was made when Sanders said it was, ante litem motam. The evidence of a witness may be corroborated in a good many ways. The usual sense of the word is “strengthen;” and in a legal sense, especially as used in the Criminal Code, evidence is said to be “corroborated” when it is fortified by other evidence of consistent facts, or of facts which increase the probability of the truth of the testimony in question. But in another, but still a proper, sense, a witness may be said, and often is said, to be corroborated by his manner, Ms character, the circumstances surroundMg the transaction he details; by any such circumstances, in short, as serve to strengthen his testimony, to render it more probable, to impress a jury with a belief in its truth. State v. Guild, 10 N. J. Law, 163. If the jury believe that the entry in question was made as Sanders said it was, it must have gone far to add probability to the testimony he gave, and certaiMy the defendant was not harmed by the statement of that proposition to them. It is quite clear, I think, that there was no error on' the trial to the prejudice of the defendant.

It is urged that the verdict is against the weight of the evidence. I am told, and I suppose it to be conceded, that there was substantially the same evidence upon the former trial. The jury then, as now, gave a verdict for the *242plaintiff, which was set aside by Judge Adams as against the weight of the evidence. After a pretty careful reading of the evidence upon the last trial before me, I am inclined to think that the verdict is not one which I would have rendered upon the evidence. But the action is for a tort. There is so much evidence that in every trial it should go to the jury. It has been passed upon by two juries, each of which has found for the plaintiff. The rule is thoroughly settled that under such circumstances the second verdict will not ordinarily be disturbed. That rule has a good ground of reason to stand upon, and is supported by much authority. Talcot v. Insurance Go., 2 Johns. 467; Fowler v. Insurance Go., 7 Wend. 270; Nichols v. Tuttle, (Sup.) 12 N. Y. Supp. 394. It is quite true that the rule is not inflexible, but it is one that should, I think, commend itself to the court in every case" which must necessarily go to the jury, unless the circumstances are extraordinary, or the verdict is clearly outrageous. This case is, I think, within the rule. A new trial must be denied.

Argued before DWIGHT, P. J., and MACOMBER, LEWIS, and HAIGHT, JJ.

Roy C. Webster, (Edward Harris, of counsel,) for appellant.

David Hays, for respondent.