Van Kleek v. Leroy.

ing a purchase from him, at about the same time. Proof of this fact was made, and it would have been erroneous to have excluded it. It was competent evidence of a distinct offense, to establish the quo animo in the case in hand.

It was not, however, of itself competent to establish the plaintiff's cause of action. On the trial of a prisoner charged with passing counterfeit money, it is competent to prove that the accused offered similar money at about the same time to other persons, but upon the question of intent only. Proof that he attempted to pass his spurious money upon a dozen other persons would afford no legal evidence that he had passed it to the prosecutor, or that it was spurious. These are the points in issue to be first established by independent evidence, and when established the intent may be aided by the extrinsic transactions. There is no legal connection between an attempt to cheat one person and an attempt to cheat another. Nor is there any legal objection to the idea that a counterfeiter or a purchaser may intend to cheat one person, and not wish or intend to cheat another.

The fraud upon the plaintiff here must be establishe l by competent proof. An attempt to defraud Kenworthy affords no legal evidence that the same man attempted to defraud Van Kleek. An undisciplined mind might say that if Leroy would cheat one man, he would cheat another; and it appearing that he cheated Kenworthy, I will assume that he cheated the plaintiff. This, however, is neither law nor logic.

The authorities I have cited show that this fact was competent to be proved, as bearing upon the motive and intent of Leroy in making the purchase. It was a balanced case. The plaintiff proved representations, as well as numerous facts and circumstances, tending to show that Leroy intended to defraud him in making the purchase.

The defendants showed various facts and circumstances tending to re-establish the good faith of the purchase. That being the precise point in the controversy, it became

quite important to establish the fraudulent representations to Kenworthy.

If he had attempted to cheat him, the jury would give such effect to that fact as they thought proper, in determining the question of good or bad faith then before them. This fact the jury had, and this was all they were en

titled to.

To hold that the fraud upon Kenworthy, which was not committed upon the plaintiff, and the statement upon which it was based, was intended by the purchaser to be communicated to him, established the plaintiff's cause of action, would be going beyone any reported case, and beyond all sound principle (Allen v. Addington, 7 Wend., 9).

The representations must be made to the seller (when representation is the mode of fraud resorted to), or must have been intended to be communicated to him. Statements to a stranger, not intended for the plaintiff, cannot give a ground of action. Each case depends on its own circumstances, and must be decided upon its own facts.

The judgment should be affirmed.

GROVER, J. (dissenting).—The question for the determination of the jury in this case was, whether Leroy purchased the goods in question with the fraudulent intent of not paying therefor, and thus of defrauding the plaintiff of their value. The plaintiff, among other things, gave evidence tending to show that Leroy, at about the time of the purchase in question, purchased goods of one Kenworthy, and, as an inducement to Kenworthy to make the sale, made false and fraudulent statements as to his pecuniary circumstances and ability to pay for the goods so purchased, which statements were communicated by Kenworthy to the plaintiff before the sale to him.

The judge charged the jury, that if the goods were purchased by Leroy of the plaintiff, upon false and fraudulent statements to him by Leroy, he knowing them to be

Van Kleek v. Leroy.

false, and that he procured the goods upon such false representations, no title passed.

The judge further charged, that if the gooods were sold by the plaintiff to Leroy, upon the strength of the representations made by Leroy to Kenworthy, or the plaintiff was influenced to make the sale by such representations to Kenworthy, the sale is not for that reason fraudulent, unless the jury further believe that such representations to Kenworthy were made by Leroy to be com municated to the plaintiff, and with the intent to influence the plaintiff to give him (Leroy) credit.

The plaintiff's counsel excepted to this latter portion of the charge. Had the action. been to recover damages of Leroy for inducing the plaintiff to sell him goods upon credit, by false and fraudulent statements, this portion of the charge would doubtless have been correct. In such a case, the statement must be made to the plaintiff, either by the defendant himself, or by his authority. But this was an entirely different case. The question in this case was whether the defendants made the purchase in question with the fraudulent intention of cheating the plaintiff out of his goods, by not paying therefor.

In this class of cases, other purchases made fraudulently so near the time of the one in question that the purchaser may be presumed to have acted upon the same design, may be given in evidence to show the intention with which the one in question was made, or, at least, as reflecting some light as to such intention (Hall v. Naylor, 18 N. Y., 588, and cases cited). For this purpose it is immaterial whether the statements made upon the other pur-, chases were communicated to the vendor previous to the sale or not. True, if made with the design of their being communicated, it might add somewhat to the force of the evidence; but even this might depend upon other circumstances. In the present case, from that portion of the charge not excepted to, taken in connection with that excepted to, the idea conveyed to the jury was, that the fraudulent statements made to Kenworthy, upon the purchase from him, were not material, unless communicated

Melvin v. Wood.

to the plaintiff, by the authority of Leroy, previous to the purchase from him. This was error.

All the judges, except GROVER J., were in favor of affirmance.

Judgment affirmed.

MELVIN against WOOD.

Court of Appeals; June Term, 1867.

BILL OF PARTICULARS.-AMENDMENT.

A bill of particulars annexed to the complaint forms part of it, and is amendable accordingly.

A referee has power, on the trial of the issues, to allow a new bill of particulars to be substituted for that annexed to the complaint.

Appeal from a judgment.

This action was brought by Austin Melvin and others, plaintiff's and respondents, against James Wood, defendant and appellant.

The plaintiff's claim to recover in this action a balance of account due them from the defendants, copartners, transacting business under the name of Samuel Barker. · The referee before whom the action was tried found the following facts:

1. At the times in said report mentioned, the plaintiffs were, and still are, copartners in business in the city of New York, under the firm name of Melvin & Danforth.

2. On the 1st day of April, 1859, the defendants became copartners in the business of tanning hides and skins in the Highland Tannery, Newburg, Orange county, under the firm name of Samuel Barker; and such co

Melvin v. Wood.

partnership continued from said 1st day of April, 1859, until after the 5th day of November in the same year.

3. That between the 9th day of April and the 5th day of November, 1859, both inclusive, the plaintiffs, at the request of the defendant, sold and delivered to them, on divers days, hides and leather, and lent and advanced to them cash, amounting altogether, to the sum of $9,134.80, as now particularly appeared in a schedule annexed to his report, marked A.

4. That during the times aforesaid, and on divers days after the dissolution of defendants' said firm, prior to July 10, 1860, the plaintiff's received from defendants, for sale on commission, for account of said defendants, divers quantities of leather, and sold the same for defendants' account, and credited the defendants with the net proceeds thereof; and that during the same period they made certain allowances as credits to said defendants, on account of damages on hides sold them, and of a small balance due from the said plaintiff's to defendant Barker, at the date of the formation of said firm of Samuel Barker.

5. That the net proceeds of such sales, including said allowance, after deducting all commissions, charges, disbursements, and allowances, amounted to the sum of $7,521.99, and the items of said credit were stated in detail in said Schedule A.

6. That by agreement between plaintiffs and defendants, the defendants were to be charged with interest on sales from the time when the same became due, and on all moneys advanced, from the date of such advance, and were to be credited with interest on all proceeds of sales for their account from date of realizing said proceeds; and on the 10th of July, 1860, the balance of interest on said accounts of debits and credits was in favor of plaintiffs, and amounted to $184.32, and there was then due from defendants to plaintiffs, on said account, a balance of principal and interest amounting to the sum of $1,797.13.

7. That on said 10th of July, 1860, payment of said balance was demanded of said defendant Wood.