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the platform after the car had started continue to get off when she could have remained on the car until she caused it to be again stopped, excepts to have given the series of questions put, omitting others in issue, as being misleading.

4. To that part of the charge which says that the jury should not conjecture or speculate as to the accident.

5. To that part of the charge which says that the car ought to have been stopped long enough to enable the plaintiff to alight and not in that same connection have said that if it did not do so yet the plaintiff had no right to get off the car if by the exercise of reasonable care she could have remained on the same and avoided the accident.

6. To that part of the charge relating to the matter of damages which said that the impaired health should be considered in relation to her future suffering, and to the refusal to give the requests of the defendant.

And thereupon the jury, after due deliberation, returned a verdict for the plaintiff and assessed her damages at $3,000.

DEBTORS AND CREDITORS.

[Cincinnati Superior Court, June Term, 1890.] *HENDERSON-ACHERT LITHOGRAPHING Co. v. BELFORD, CLARKE & Co. 1. NotE GIVEN FOR DOES NOT EXTINGUISH ACCOUNT.

A note given for an open account does not extinguish or discharge the

account unless such is the express agreement of the parties, and the bur.

den of showing such agreement iş upon the debtor. 2. NOTE MERELY EXTENDS TIME OF PAYMENT.

The acceptance of a note given for an open account, merely extends the

time of payment of the debt; and if the note is not paid when due suit

can be brought upon the note or the account. 3. SUIT ON ACCOUNT-RETURN OF NOTES.

Suit may be brought upon an original account for which notes have been

given and the time extended at any time, if, for any reason, the contract extending the time of payment is lawfully annulled or rescinded; and it is sufficient if the notes are returned at any time up to the day of trial.

*Judgment affirmed in general term, January, 1891, and by Supreme Court, 52 Ohio St., 668, unreported. In the Supreme Court, Kramer & Kramer, Jackson & Swarts, and Lowrey Jackson, for plaintiff in error, cited: 1 Bigelow on Fraud, 1888 Ed., 81, 82, 83, and cases cited; Durbin v. Fisk, 16 Ohio St., 533; Woolen Mills Co. v. Titus, 35 Ohio St., 253, 256; Merrick v. Boury, 4 Ohio St., 60; Wise v. Miller, 45 Ohio St., 388, 397; Miller v. Woods, 21 Ohio St., 485; Muckolls v. Pinkston, 38 Ala., 615; Babcock v. Bank, 28 Conn., 302; Phillips v. Bullard, 58 Ga., 256; Hall v. Ballon, 58 Iowa, 585; Sledge v. Scott, 56 Ala., 202; McCormick v. Joseph, 77 Ala., 236; Ohio Coal Co. v. Davenport, 37 Ohio St., 194, 197; Barrett v. Hart, 42 Ohio St., 41; Sherer v. Piper, 26 Ohio St., 476; Wharton on Evidence, Sec. 1090; 2 Starkie on Ev., 38; White v. Cotzhausen, 129 U. S., 329; 1 Greenleaf Ev., Sec. 441; Fire Department v. Buhler, 35 N. Y., 177; Hyde v. Melvin, 11 Johns.,521; Mohlson's Book v. Boardman, 47 Hun.,135: Hennessy v. Farelly, 13 Daly, 468; Tomlin v. Hilyard, 43 Ills., 300; 1 Wharton Ev., Sec. 507 and cases; Laws on Expert Ev., 497, Rule 65 and cases; Laws on Expert Ev., p. 164, Rule 33 and cases; Ib. p. 497, Rule 65; Stillwater Turnpike Co. v. Coover, 26 Ohio St., 520; Railroad Co. v. Schultz, 43 Ohio St., 270; Legg v. Drake, 1 Ohio St., 286; Board of Education v. Mills, 38 Ohio St., 383; Grove V. Hodges, 55 Pa. St., 518; 1 Bigelow on Fraud, '88 Ed., 590, et seq; Bank v. Bogart, 81 N. Y., 101; Dambmann v. Schulting, 75 N. Y., 55; Hadley v. Importing Co., 13 Ohin St., 502. at p. 513; General Ch., pp. 88, 89, 90; 1 Bigelow Fraud, '88 Ed., 560; Rutherford v. Williams, 42 Mo., 18; Atwood v. Small, 6 Clark and Fin., at pp. 446, 447; Mulvey v. King, 39 Ohio St., 491; Smith v. Bowler, 1 Disn., 520; (affirmed, 2 Disn., 153,); 1 Bigelow, Fraud, '88 Ed., 549 and 548; Morris v. Talcott, 96 N. Y., 100, per Ruger, C. J.; Fogg v. Pew, 10 Gray, 409, at p. 415; Wald's Pollock on Contracts, p. 534, citing; McCracken v. West, 17 Ohio. 16; Way v. Hearn, 13 C. B., N. S., 292; Peck v. Gurney, L. R,, O. H. L., 377; Wald's Pollock, 535; Kerr on Fraud and Mistake, p. 93.

Heuderson.A hosty. Beitord, Clarke & Co.

4. PURCHASE BY INSOLVENT DEBTOR.

The purchase of goods by an insolvent buyer, who conceals his insolvency

with intent to injure the vendor is fraudulent and voidable, but a purchase under like circumstances, save that such intent is absent, is not in law fraudulent. The simple failure to disclose a condition of in.

solvency does not imply a purpose to defraud. 5. FRAUD-PRESUMPTION OF CONSEQUENCES.

Notwithstanding fraud must be proved and not presumed, there is a pre

sumption that every reasonable man expects and intends the ordinary

and probable consequences of known causes and conditions. 6. PRESUMPTION OF INTENTION TO DEFRAUD.

The intention of a purchaser not to pay for goods may be presumed when

he has knowledge of his own insolvency and inability to pay for them; and such intention may be inferred from the mere fact that the purchaser had undisclosed knowledge of his gross insolvency, but such inference

may be rebutted. 7. RULE AS TO GIVING NOTE BY INSOLVENT DEBTOR.

The giving of notes by defendants in settlement of an account without

intent to defraud, although knowing themselves to be insolvent, is not fraud in law, where there was no concealment of the insolvency, but simply a failure to disclose it, unless the insolvency was so gross as to

lead to the presumption of an intent not to pay. 8. FACTS JUSTIFYING DISREGARD OF Notes.

The fact that plaintiffs were induced to accept notes in settlement of an

account against defendants upon receipt of a letter representing that there was about to be an increase of capital stock, when there was neither intention nor expectation of increasing such stock, justifies plaintiff in dis

regarding the notes and suing on the original account. 9. RIGHT TO SUE AT ONCE UPON ACCOUNT.

Where an account was due for which notes were given to extend the time

of payment, and the holder was induced to accept such notes by false representation, or fraudulent concealment by the defendant, the plain. tiff had a right at once to sue upon the original account.

Charge to the Jury.

HUNT, J.

Gentlemen of the Jury: This is an action in which the plaintiff, the Henderson-Achert Lithographing Company, seeks to recover from the defendant, Belford, Clarke & Company, on a certain account set forth in the petition for lithographing work, the sum of $2,988, with interest from August 19, 1889.

• Wilby & Wald, for defendant in error, cited: Miller v. Woods, 21 Ohio St.,485; in Bebout v. Bodle, 38 Ohio St., 500; Woolen Mills v. Titus, 35 Ohio St., 253; Edg. ington v. Fitz Maurice, 29 Ch. D. at 483; Barrett v. Hart, 42 Ohio St., 41, 44;

41 S. & C. P. Vol. 10.

Superior Court of Cinciunatı.

The defendant files an answer in which it denies that it is indebted to the plaintiff in the manner and form so averred in the petition, and in any sum whatever, and denies each and every other allegation in the petition except the averment of the corporate capacity of the parties. It is further alleged as a defense that all the accounts between the defendant and the plaintiff were closed by note long before the commencement of this action, and that none of the notes were due at the time this action was begun.

The plaintiff, for reply, says that three notes, one for one thousand dollars, dated Chicago, July II, 1889, at three months after date, another 'for fifteen hundred dollars dated Chicago, August 6, 1889, due three months after date, and a third note dated Cincinnati, August 19, 1889, for $488.09, at three months after date, were given to the plaintiff by the defendant at or about the dates named, covering the amount of the account set forth in the petition, and that the notes were received and accepted by the plaintiff only in conditional payment of the account, and not otherwise in any way. There is a further averment, that at the time the defendant gave the notes which operated as a conditional payment, extending the time to the dates of their maturity, the defendant was, with the knowledge of its officers, hopelessly insolvent, which fact was unknown to the plaintiff, whose officers supposed the defendant to be solvent, relying upon the statements made by the defendant to the plaintiff on May 14, 1888, that the defendant was about to add two hundred and fifty thousand dollars to its cash capital, and that the officers of the defendant failed to disclose their insolvency to the plaintiff, and failed to notify the plaintiff that no such sum had teen added to the cash capital.

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Coal Co. v. Davenport, 37 Ohio St., 194; Barrett v. Hart, 42 Ohio St., 41; MCCormick v. Joseph, 77 Ala., 236; Mulvey v. King, 39 Ohio St., 491 at 494; Benton V. Ward, 47 Fed. Rep., 253-256; Wilcox v. University, 32 Ia., at top 374; Brooks v. Hamilton, 15 Minn., 26 at p. 33; Lanier v. Hill, 25 Ala., at bot. 558; Da Lee v. Blackburn, 11 Kan., 190 at 205; Newbigging v. Adam, 34 Ch. D., 582; 13 App. Ca.,308; Karbergs cases, 92, 3 Ch. 1, 11, 12, 13; Smith v. Richards, 83 U. S. (13 Pet.) 26; Hammond v. Pennock, 61 N. Y., 145 at p. 152; 1 Story on Eq. Jur., Sec. 193 and cases cited; Perry on Trust, Sec. 171; in Derry v. Peek, 14 App. Cases, 1889; in Trail v. Baring, 4 D. J. S., 329; Mooney v. Davis, Assignee, 75 Mich., 188; Am. and Eng. Ency. Law, Vol. 11, 376; Aetna Ins. Co. v, Reed, 33 Ohio St., 283 at 294; Beach v. Bemis, 107 Mass., 498-499; Beebe v. Knapp, 28 Mich., 53; Stone v. Covell, 29 Mich., 359; Ford v. McComb, 12 Bush., 723; Munroe v. Pritchett, 16 Ala., 785-790; Einstein v. Marshall, 58 Ala., 153; Sims v. Eiland, 57 Miss., 607; Bushind v. Barrington, 36 Minn., 320; Middleton v. Jerdee, 73 Wis., 39; Cooper v. Schlesinger, 111 U. S., 148-155; Nevada Bk. v. Portland Nat. Bk., 59 Fed. Rep., 338; Matthews v. Bliss, 22 Pick., 48; Safford v. Grant, 120 Mass., 20 at page 25; Morgan v. Skiddy, 62 N. Y., 319; Pollock on Contracts, Wald's 2d Ed., 528; Central Ry. Co. v. Kisch, L. R. 2, H. L., 99; David v Park, 103 Mass., 501; Mead v. Bunn, 32 N. Y., 275-280; Roberts v. Plaisted, 63 Me., 335; Upton v. Englehart, 3 Dill., 496-501; Eaton v. Winnie, 20 Mich., 156; MCClelland v. Scott, 24 Wis., 81; Risch v. Von Lilienthal, 34 Wis., 250; Matlock v. Todd, 19 Ind.. 130; Wannell v. Kem, 57 Mo., 478; Caldwell v. Henry, 76 Mo., 254; Bank v. Hunt, 76 Mo., 439; Carmichael v. Vandebur, 50 Ia., 651; Porter v. Fletcher, 25 Minn., 493; Olson v. Orton, 28 Minn., 36; McKee v. Eaton, 26 Kan. 226; Morris v. Talcott, 96 N. Y., 100; Fogg v. Pugh, 10 Gray, 4-9; Way Y. Hearn, 13 C. B. N. S., 292; Wells v. Cook, 16 Ohio St., 67.

Henderson-Achert v. Beltord, Clarke & Co.

There is still further averment that as another ground for a rescise sion of the contract which is to be assumed from the acceptance of the notes, that the defendant by letter dated May 14, 1888, representing that it was about to add to its cash capital the sum of two hundred and fifty thousand dollars, thereby representing to the plaintiff that it had made arrangements which would enable it to add that sum to its cash capital, all of which representations were false, and that the defendant had neither the intention nor any reasonable expectation of being able to add such sum to the cash capital; but the plaintiff, believing them to be true, extended the time of the payment of the indebtedness; and when it discovered the alleged fraud and failure to disclose the falsity of such statements and representations, the plaintiff rescinded any agreement to be inferred from the acceptance of said notes, and so notified the defendant forthwith, and has returned the notes to the defendant.

When a note is given for an open account, it does not extinguish or discharge the account unless such is the express agreement of the parties, and the burden of showing such an agreement is upon the debtor. In the absence of such agreement, the acceptance of a note merely extends the time for the payment of the debt; and if the note is not paid when due, suit can then be brought either upon the note or on the account; and, further, if for any reason, the contract extending the time for the payment of the debt is lawfully annulled or rescinded before the note matured, then suit may be brought upon the account at once, and if the plaintiff in this case had a legal right to disregard the notes, and sue upon the account, it was not necessary for the plaintiff to return the notes before the suit, but the law would be satisfied if they returned the notes at any time up to the day of trial.

The defendant, in its answer, denies each and every allegation contained in the petition except the averment of corporate capacity, although there is a further averment that all accounts between it and the plaintiff were closed by notes long before the commencement of the action, and that none of the notes were due before the action was begun. It is true there is a general denial in the answer, which put in issue the allegations contained in the petition, except as to the averment of corporate capacity, but it is conceded by all the parties to this suit that the account itself is correct, and the defense is that the account was settled by certain promissory notes which had not matured at the commencement of the action.

The contention of the plaintiff is :

First: That the notes in question were received and accepted by the plaintiff only as conditional payment.

Second: That at the time the defendant gave the notes, which it is claimed operated as a conditional payment extending the time to the dates of their maturity, the defendant was, to the knowledge of its officers, hopelessly insolvent, which fact was unknown to the plaintiff, whose

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Superior Court of Cincinnati.

officers supposed the defendant to be solvent. On May 14, 1888, there was a statement made by defendant to plaintiff that the defendant was about to add two hundred and fifty thousand dollars to its cash capital, and that the officers of the defendant failed to disclose its insolvency to the plaintiff, and failed to notify the plaintiff that no such sum had been added to its cash capital.

Third: Because the defendant, by letter dated May 14, 1888, represented to the plaintiff that it was about to add to its cash capital the sum of two hundred and fifty thousand dollars, thereby representing to the plaintiff, as it is claimed by the plaintiff, that it had made some arrangements to enable it to add that sum to its cash capita!, all of which representations, it is claimed by the plaintiff, were false, and that the defendant had neither the intention or any reasonable expectation of being able to add such sum to its cash capital, but the plaintiff believing the representations as alleged to be true when it extended the time of the payment of the indebtedness.

Fourth: When the plaintiff discovered the fraud and failure to disclose the falsity of such statements, the plaintiff rescinded the agreement to be inferred from the acceptance of said notes, and notified the defendant forthwith, and returned the notes to the defendant.

The burden of proof, so far as these allegations are concerned, is upon the plaintiff, and before the plaintiff can recover in this form of action the jury must be satisfied that the allegations in the reply on which the plaintiff relies for a rescission are true, and are fairly shown by a fair preponderance of all the evidence.

While it is true that an intention on the part of a purchaser of goods not to pay for them existing at the time of the purchase, and concealed from the party selling, is unquestionably such fraud as will vitiate the contract, it is none the less true, on the other hand, that where no such fraudulent intent exists, the mere fact that the purchaser has knowledge that his debts exceed his assets, though the fact be unknown or undisclosed to the seller, will not vitiate the purchase. Even, therefore, if it should be shown by a fair preponderance of the evidence that the defendant, Belford, Clarke & Company, had knowledge that its debts exceeded its assets, though the fact be unknown and undisclosed to the Henderson-/Achert Company, it will not of itself avoid the contract, for it may be stated, as a general principle of law, that whether a purchaser's failure to disclose his known insolvency is fraudulent or not, depends upon the intention of the purchaser, and whether that intention was to pay or not to pay. That is a question of fact which the jury must determine from all the evidence in the case.

In order, therefore, to reach a correct conclusion in this case, there are certain presumptions which the law recognizes, and which are entitled to be considered by you ; and while it may be said that fraud must

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