
    Edward J. King et al., Resp’ts, v. Albert Jacobson et al., Isaac Bernstein, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    1. Fraud—Evidence
    In an action to replevin goods alleged to have been purchased from plaintiffs by a firm through false representations, it was shown that at the time of the sale the firm made a statement showing that they had liabilities about $2,000, and a surplus of assets of $18,000. Evidence was admitted to show that less than seven months thereafter judgments were recovered against the firm for over $11,000, and a sale of the assets on execution failed to realize that amount. Held, that such evidence tended slightly to indicate the fact to he that they were not financially as well situated as they were represented when the goods were sold, and while not conclusive, was competent to prove the facts maintained by it.
    2. Same—Burden of proof—Bona fide purchaser.
    The burden of proof is upon the party alleging that he purchased the goods or made advances upon them in good faith, to prove the fact to he so.
    Appeal ' from a judgment recovered on a verdict, and from an order denying a new trial.
    
      Howe & Hummel, for app’lts; Blumenstiel & Hirsch, for resp’ts.
   Daniels, J.

This action is replevin to recover the possession of sixty-five dyed sealskins. They were sold and delivered by the plaintiffs to Jacobson & Perlson, who were engaged in business at Chicago. The sale took place on or about the 16th day of November, 1887. This firm failed early in June, 1888. The skins before that, and early in the year, are stated to have been sold and delivered to M. Wein & Go;, who claimed to have become their purchasers in good faith and for value. Mr. Wein of .this firm after that sent them to the appellant Isaac Bernstein at the city of New York, who alleged that he had in good faith advanced upon the skins to Wein & Go. the sum of $1,200. When the possession of the skins by the defendant Bernstein came to the knowledge of the plaintiffs they brought this action to recover them, on the ground that the sale by them had been ‘ induced by fraudulent, representations made by Jacobson & Perlson.

The evidence to prove this fact was given by Gustav N. Cohn, who was the plaintiff’s salesman, .and had the skins with him for sale at the city of Chicago. He testified that before he delivered the skins he asked Mr. Jacobson, who purchased them for his firm, for a statement. And that Jacobson replied that he had a stock of about $9,000, $5,000 outstanding, cash $3,200, machinery $2,000, with liabilities about $2,000, showing a surplus of about $18,000. To provd this statement untrue, six judgments were shown to have been recovered against Jacobson & Perlson on the 8th day of June, 1888, for the aggregate sum of $11,865.88, and their property at the sale under the judgments failed to realize that amount. These judgments were objected to'as evidence by the defendant Bernstein, who alone was served with the summons and appeared in the action. The objection was that the evidence was irrelevant, incompetent and immaterial, which the court overruled, and the defendants’ counsel excepted. But it was relevant and pertinent to prove that the purchasers of the skins did fail at that time, and that their property proved insufficient to satisfy the judgments, which seem to have been recovered with their assent. That proof slightly tended to indicate the fact to be that they were not financially, as well situated as they were represented to be by Jacobson when the skins were bought by his firm. If they had been, then there was an improbability that their circumstances should have undergone so great a change as to produce this failure during the intervening time of less than seven months. This evidence was not conclusive by any means, but still it was competent to prove the facts maintained by it. And it may be that a verdict standing upon this alone, as proof that the representations were false, would have to be set aside. But that point is not in this case. For the printed book is not stated to contain all the evidence, and there may have been still further proof on this subject, which with that already stated disclosed the falsity of the representations which had been made. Indeed in the absence of the statement that there was no further evidence, it is to be assumed that there was, and that it was sufficient with that set forth to- sustain the conclusion of the jury. Their verdict, therefore, cannot be set aside because of any deficiency in the evidence to prove the representations to be false.

An exception was also taken to proof of what Perlson had said after the failure. But this exception is not important, for he •made no statement in the least degree injurious to the defendant.

In the submission of the case to the jury the court directed them that the burthen of proof rested upon the defendant to prove a purchase of the skins from Jacobson & Perlson in good faith, or advances made upon them by the defendant acting in the same manner, if the plaintiffs satisfied 'them that they had sold and delivered the skins under fraudulent representations. And to that the defendant’s counsel excepted. But the court was entirely right in this legal rule. It was for the party alleging that purchase, and that advancement of money, to prove.the fact to be so, if that could be done. It was a defence within the knowledge of the defendant, and to be proved by evidence directly available to him, if it existed, and not to the plaintiff, and, therefore, for the defendant to maintain. Mather v. Freelove, 3 N. Y. State Rep., 424; Seymour v. McKinstry, 106 N. Y. 230, 240; 8 N. Y. State Rep., 580; 11 id., 760.

The demand made upon the defendant for, the return of the skins has also been objected to as insufficient. But any defects in the proof concerning it will he supplied by the form in which the case was made. For other proof may be assumed to have been produced from the absence of the statement that the case, as it has been made, includes it all Beyond that, the complaint alleged:

Y. That prior to the commencement of this action the plaintiffs duly demanded from the said defendant Bernstein the return and possession of the said goods and chattels, and the said defendants wholly refused to return the same and give possession thereof to these plaintiffs.

And that was expressly admitted by the answer, which in that manner did establish a complete demand of the skins from the defendant and his refusal to deliver them.

The motion for the nonsuit raised no point of importance, for the reasons urged in support of it were unimportant. And both the decision then made, and the verdict rendered finally by the jury, are sustained by the presumption that all the evidence has not been inserted in the case, arising out of the absence of any statement that it has all been presented. There is no ground on which the appeal can be supported, and the judgment and order should be affirmed.

Van Brunt, P. J., and Brady, J., concur.  