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Newark Live Poultry Co. v. Fauer

Decided: September 27, 1937.


On appeal from the Essex County Circuit Court.

For the plaintiff-respondent, Schotland & Schotland.

For the defendant-appellant, George H. Rosenstein.

Before Brogan, Chief Justice, and Justices Trenchard and Parker.


BROGAN, CHIEF JUSTICE. The plaintiff corporation, a wholesale dealer in live poultry, recovered a judgment against the defendant in the Essex County Circuit Court in an action for damages based on deceit.

The defendant appeals and contends that the court erred in rejecting his motion for nonsuit and for a direction of verdict; that error was committed by the court in ruling on evidence; that the charge to the jury was erroneous, and that the refusal of a request to charge was error. The complaint alleges and the plaintiff's witnesses gave testimony tending to prove that defendant obtained credit from the plaintiff corporation for the firm in which defendant was a partner on the strength of a representation of financial worth made by the defendant. The representation was that the said partnership owned the land and premises in which their retail poultry business was conducted, free and clear of encumbrances and that he, the defendant, owned the premises in which he lived, subject to a small mortgage. The testimony supported a finding that this representation was made when the plaintiff had discontinued its practice of extending credit to the defendant's firm; that the representation was false, and that the defendant knew that it was false when he made it, and that the plaintiff, believing it, acted upon it to its detriment.

At the trial the defendant was called as plaintiff's witness and from him the plaintiff obtained proof that the business property of the partnership was encumbered by liens that totaled $45,000 and that the defendant personally never owned the premises in which he lived.

The argument in support of the appellant's first point that his motion for nonsuit should have been granted and that a verdict should have been directed for him is that the plaintiff

failed to show a causal connection between the representation and the damage that ensued. The damage claim was for unpaid bills for goods sold and delivered in June, 1934. The proofs show that the representation was made on January 16th, 1934; that the credit formerly extended to the defendant's firm had been discontinued a week previously and that beginning on January 23d, the plaintiff each week sold to the defendant's firm, on credit, on the strength of the oral financial statement, live poultry, &c., up to June 26th, 1934. The weekly deliveries of merchandise from January 23d, up to the first week in June, apparently were paid for and the money damage claimed is for merchandise delivered and not paid for on the 12th, 19th and 26th of June. The amount involved is not questioned.

The appellant says that this delinquent account is too remote from the date of the representation to be in any way related to it. In other words, that the damage suffered by the defendant, through not being able to collect these bills, was not caused by the statement made on January 16th.

The argument is that since the plaintiff's suit was brought for the unpaid purchases of June, the defendant cannot be held liable for representations made in January, and, inferentially, the appellant argues that even though the representations were made as claimed they cannot be relied upon for an indefinite or unreasonable period. We cannot agree that the period of time in question is either indefinite or unreasonable. After all, a period from January 23d, when the deliveries on credit were resumed, until June 26th, when they were discontinued because of failure to pay, is not an unreasonable time. The defendant offered no proof of custom in the trade to support this argument. The court, however, in his charge to the jury, was careful to submit this question as a fact issue to the jury, i.e., whether the plaintiff's loss resulted as a direct consequence of the defendant's fraud. We find no error in this point.

It is next argued that the court erred in its ruling on evidence. The first ruling thus complained of concerned a question asked of plaintiff's ...

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