Nye v. Merriam

Fraud. Action. Damages. Evidence. Exemplary Damages„ A fraud unaccompanied by damage is not actionable. The defendant cheated the plaintiff in weighing some butter sold him by the latter, and reported the false weight to the plaintiff, but afterwards the plaintiff accepted from the defendant his note in payment for the butter, in. a sum large enough to cover the contract price of the quantity actually furnished. At the time the note was given the plaintiff had forgotten tbs weight as originally reported 6y the defendant. Held, that in the absence of proof that the plaintiff had been put to any trouble or expense by the defendant’s falsehood, he could not recover therefor. Evidence that a party at a former trial of a cause claimed, through his coun- • sel, to defend the suit upon grounds wholly inconsistent with his present testimony, is admissible as tending to discredit such testimony. Exemplary damages are allowable in an action on the case for deceit, when the evidence tends to show that the defendant wilfully purposed to deceive and defraud the plaintiff.

Case for fraud in cheating in.weighing a quantity of butter sold by the plaáptm to the defendant. The defendant pleaded the general issue, with notice of special matter in defence, and the case was tried by jury at the June Term, 1861, in Orleans county, Poland, Ch. J., presiding. The plaintiff’s evidence tended to prove that about the middle of October, 1858, he sold to the defendant eleven tubs of butter at the price of eighteen and one-half cents per pound, to be delivered by the plaintiff in Barton, the defendant paying the plaintiff $33 towards the same before the delivery ; that'about the 1st of November, the plaintiff being away from home, the defendant called for the butter, and the same was carried by the plaintiff’s father to the appointed place of delivery, where it was weighed by the defendant, and the weight marked by the defendant on the several tubs, and a list of the weights in figures on a slip of paper given-to the plaintiff’s father. The plaintiff gave evidence tending to prove that the defendant when he weighed the tubs full of butter placed his foot under the edge of the platform of the scales, so as tb make the weight less than the true weight, and, when the empty tubs were weighed, placed his foot upon the edge of the scale, so as to make the tub appear to weigh more than the true weight, and that by these means, the weight of the butter as marked oa the tubs, and given to the plaintiff’s father, Was less than the true weight of the butter, from two to three pounds upon each tub of the butter, — and that this was done designing to cheat and defraud the plaintiff; that immediately after the delivery of the plaintiff’s butter, the defendant went to Boston with that and butter purchased'by him of various other persons, and there sold the same, but did not return to Barton as was expected, and in the early part of December, information was' received by the plaintiff that the defendant was about to proceed to California, without returning to Barton, or paying for the butter he had purchased on credit of the plaintiff and others ; that the plaintiff thereupon, ;for himself and two other persons, of whom the defendant had purchased butter on credit, went in pursuit of the defendant, first to New York city, from there to Boston, arid finally to Lebanon, New Hampshire, where he found the defendant, and called on him for payment for the balance due him for his butter, and the two other men for whom he was acting; that the defendant replied that he had no money, and could not pay'. In relation to what took place between the plaintiff and the defendant on this occasion, the plaintiff testified as follows : “ The defendant felt bad because he could not pay me. I said if he could not pay me he must give me his note, as I had nothing t‘o show. He asked how much it was. I told him I did not know, but supposed he could tell. He said he could not, that his papers were in his valise or trunk. I said I supposed it was about sixty dollars j he thought it was fifty-five or sixty dollars. I said I had been at considerable trouble hunting after lxim, and would call it sixty dollars. He assented, and gave me his note for‘sixty dollars, and I came home. I had lost the paper that my father gave me, and did not know what the figures were. There was not a word said between ns about fraud in the weight, and no allusion to it whatever.” The defendant’s evidence tended to prove that the plaintiff’s butter was fairly and truly weighed by the defendant, and n® such cheat practised in weighing as the plaintiff claimed ; that the true weight was marked on the tubs, and that the just balance due to the plaintiff from the defendant for the butter, after payment of the $33, was $55.25. In relation to the transaction between the plaintiff and the defendant, at Lebanon, the defendant testified as follows: “Last of December, or 1st of January, the plaintiff came to Lebanon, New Hampshire, where I was stopping, said he wanted to settle this butter matter, — wanted the money for his butter. I told him I had not got it. Then he said he wanted my note. We had considerable talk, though the plaintiff was in a hurry. We talked about his following me round. I asked what his object was. He said he wanted to catch me. I asked what he expected to do when he did. He said he did not know, — had made a fool of himself, and was sorry. I asked the plaintiff how much there was. He said he had not got it. I showed him from a memorandum book how much it was. He seemed satisfied. I then brought up the matter of the cheat; said I had understood he had threatened to prosecute me, and I wanted to have it settled, so I could come back to Barton and not have him jumping on to me. I said I would give him my note for ©60 ta settle it all up. He said that would be satisfactory, and I gave him my note for $60, and he left for the cars. The plaintiff said he had been to a good deal of expense, and had been to New York and Boston. The plaintiff asked if my father or brother would not sign the note with me. I told him I should not ask them to do so, for I owed them borrowed money. He said he should go and ask them. I said he could do so, and they could do as they pleased about it.” The defendant also introduced the testimony of several witnesses of admissions by the plaintiff that the note was given to cover and settle not only for the balance due for the butter, but also for his claim for being cheated by the defendant in the weight. The- plaintiff in his rebutting evidence, gave evidence tending to prove that the defendant was present at the trial of this cause before the justice, and testified, that at the interview between him and the plaintiff at Lebanon, the plaintiff set up no claim that there h.ad been any fraud in the weight of the butter, and that nothing was there said about it, and that Mr. Cooper, the defendant’s counsel, in the presence of the defendant, put the defence wholly upon the ground that there was no fraud in the weight, and relied strongly upon the fact that when the plaintiff found the defendant at Lebanon, and took his note, he made no claim of the kind, as evidence that there was no fraud. The defendant’s counsel objected to this evidence, so far as it went to show the grounds of defence and argument of Mr. Cooper on behalf of the defendant, but the court admitted the same, to which the defendant excepted. On the defendant’s cross-examination, he was enquired of by the plaintiff’s counsel when, and to whom, and for how much he sold his butter in market, how much money he received, how he expended it, and as to his whereabouts from the time he went to Boston with the butter, till he was found by the plaintiff at Lebanon as above stated. The defendant’s counsel objected to these inquiries, but they were allowed to' be put, and answered by the defendant, to which the defendant excepted. It was conceded by the plaintiff that before he met the defendant at Lebanon, he had had an intimation that the defendant had cheated him in the weight of the butter, but that he did not know the extent of it, nor the manner in which it was done. The defendant’s evidence tended to prove that prior to the interview at Lebanon, he had received.from his family in Barton information that the plaintiff claimed he had cheated in the weight of the butter, and was threatening to prosecute him therefor. It was conceded, also, that the 'note the defendant gave the plaintiff had never been paid, and that it was large enough to cover the full value ef the butter at its true weight. The defendant’s counsel claimed and requested the court to instruct the jury, that if the defendant was thus guilty of cheating in the weight, still if the note he gave the plaintiff was large enough to cover the full amount of the butter received by the defendant from the plaintiff, at the price per pound agreed, it operated as full payment and satisfaction for all the butter, and that the plaintiff therefore was not defrauded, and could not maintain this suit, and that this would be so, whether the matter of the fraud was alluded to at the time of the settlement, or not, and that even if it was as stated by the plaintiff, it would preclude a recovery. The defendant also requested the court to charge the jury, “ that if they found that the reason the plaintiff asked so large a note, and the reason the defendant gave so large a note, was the alleged fraud, although both avoided any discussion of the disagreeable subject, then no right of action accrued.” The court declined so to charge, but did charge the jury that if the plaintiff satisfied them that the defendant purposely cheated in weighing the butter, still if the plaintiff’s claim for such fraud was mutually settled and adjusted by the parties, and included in said note, it would be a defence to the action, but that if the note was given merely in settlement of the balance due t’o the plaintiff for his butter, at its reported weight by the defendant, and with no reference whatever to the plaintiff’s having been cheated by the defendant in the weight, then the plaintiff’s right of action for such fraud was not thereby barred, even though the note given was large enough to cover the whole of the butter received by the defendant, at the contract price ; that if the facts in reference to the settlement and giving of the note were just as stated by the plaintiff, they would not amount to a settlement of the fraud in the weight, if such existed. The defendant excepted to tie refusal to charge as requested, and to the charge as given on this point. The defendant also claii led that, if there was a fraud in the weight and it was not settled, that the plaintiff could only recover for the deficiency in the weight of the butter caused by such cheat, at its value, or the contract price per pound. But the court charged that if the defendant purposely cheated in the weight, with design to defraud the plaintiff, the jury might give such exemplary damages as they should, under all the circumstances, consider just between the parties. The defendant excepted to this direction also. The jury gave a verdict for the plaintiff.