
    W. & B. Douglas, Respondent, v. Charles J. McDermott, Doing Business under the Name or Style of The Iroquois Rubber Company, and Others, Appellants.
    
      Conspiracy to obtain goods by fraud—sufficiency of the complaint-—when declarations of some of the alleged conspirators are admissible against the others —printed letter headings as representations.
    
    A complaint in an action "brought to recover for alleged fraud and conspiracy on the part of the defendant in obtaining goods, which fails .to .allege in terms that- the plaintiff believed the representations charged to have been made to it to he true, but states that the plaintiff relied and acted upon such representations, and that the defendant .received and retained the goods with intent to defraud the plaintiff, is sufficient.
    
      Parties alleged to have been associated in a transaction to defraud must be shown to have borne to each other the relation of conspirators before the declarations of some of them are competent evidence against the others.
    Letter heads containing names of fictitious officers of a fictitious corporation, under which orders were sent to a vendor, signed in the name of the fictitious corporation by its alleged superintendent, constitute representations relative to the sale and delivery of the goods thus ordered.
    Appeal by the defendants, Charles J. McDermott, doing business under the name or style of the Iroquois Rubber Company, and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 3d day March, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of March, 1897, denying the defendants’ motion for a new trial made upon the minutes.
    The plaintiff alleged, and the defendants by their answer admitted, that the plaintiff was a corporation created pursuant to the laws of the State of Connecticut, having its permanent office in the city of Hew York, and engaged in the manufacture and sale of patent pumps, hydraulic rams, garden engines, hydrants, etc.; that the defendants Horth American Rubber Company and Liberty Rubber Shoe Company were corporations having their factories and head offices at Setauket, in the county of Suffolk, H. Y.; that the defendants Edwin Elberson and Joseph W. Elberson were members of the board of directors of each of these defendant corporations; that Joseph W. Elberson was president and superintendent of each of them, and that Edwin Elberson was secretary and treasurer of the Liberty Rubber Shoe Company.
    The plaintiff also alleged that in August, 1895, the defendant McDermott represented to the plaintiff that the Iroquois Rubber Company was a duly organized corporation engaged in the manufacture of druggists’ sundries, mystic corset pads, dress shields, etc., having its factories and general office at Setauket, H. Y., and having a Hew York office; that its president was M. Hayes, its general manager Washburne, and its superintendent Scoville; that thereafter, in August' and September, 1895, the defendant McDermott, under the name of the Iroquois Rubber Company, designating himself as its superintendent, applied to the plaintiff for the purchase of pumps, pipes and appliances, and that the plaintiff, relying upon his representations, so made, sold to him under the name of such company such goods, and delivered them at Setauket, S'., Y., amounting to $118.82,-which he, acting in the name of such company, promised to pay ; that plaintiff has since learned that the so-called iroquois Rubber Oompany never had any existence, and that the names . of - Hayes, Washburne and Scoville, mentioned • as having such relations to it, were fictitious; that the name of Iroquois Rubber Oompany was adopted by all the defendants for the fraudulent purpose of .procuring goods without paying for them; that defendant McDermott so acted under the fictitious name of the so-called company and made false representations with the collusive knowledge,. request and concurrence of the other defendants, for the purpose of procuring’ supplies for the two defendant corporations and the defendants Elberson, and for the joint benefit and profit of them and McDermott, and for the purpose of defrauding others, and that the. goods so procured from the plaintiff were delivered by defendant McDermott to the defendants and received by them, knowing that they had not been paid for, and with the purpose and intent of cheating and' defrauding the plaintiff; and that the defendants have wrongfully taken and converted such goods and have been guilty of fraud. All the allegations of the complaint, other than' those so admitted, were put in issue, by the defendants’ answers.
    
      Thomas J. Ritch, Jr., for the appellants.
    
      Samuel S. Watters, for the respondent.
   Bradley, J.:

The action was founded on alleged fraud and conspiracy on the part of the defendants. In the outset of the trial the question whether the complaint stated facts sufficient to constitute ■ a cause of action was raised by motion, in which all the defendants united, to dismiss the complaint. It is urged that it failed to state all the facts essential to a cause of action in fraud. The main omission relied upon is that the plaintiff’ did not allege in terms that it believed the representations charged to have been made to it to be true. This is an allegation usually made, and it is a fact essential to fraud, but the allegation that the plaintiff relied upon such representations and acted upon them fairly imports belief that they are true. This was substantially alleged in the complaint, also that the goods in question were received' and retained by the defendants with the intent on their part of cheating and defrauding the plaintiff. ' These, with other allegations to which it is unnecessary here to refer, were sufficient to support the complaint as charging a cause of action. (Brackett v. Griswold, 112 N. Y. 454; Sanders v. Soutter, 126 id. 193; Kain v. Larkin, 141 id. 144; Sage v. Culver, 147 id. 241.)

In turning to the evidence, aided by matters alleged in the complaint and admitted by the answer, it appears that, at the time in question, the factories of the two defendant corporations were in the same neighborhood at Setauket, New York; that the defendants Elberson were members of their boards of directors; that the defendant Joseph W. Elberson was the president and superintendent of both of them, and that the defendant Edwin Elberson was the secretary and treasurer of the Liberty Rubber Shoe Company, and it may be inferred from the evidence that the so-called Iroquois Rubber Company had no existence, nor can it be seen that the pretense that there was such a company was founded upon any good or legitimate purpose. It evidently was deliberately contrived to mislead and deceive somebody; Letter heads were printed containing .the names of J. M. Hayes, president; E. S. Washburne, general manager; G. H. Scoville, superintendent of Iroquois Rubber Company, manufacturers of numerous articles mentioned, “ factories and general offices, Setauket, N. Y.” With that display or heading, orders were drawn and sent out by defendant McDermott for goods to be delivered at Setauket. The orders were subscribed with the name of Iroquois Rubber Company, per himself as superintendent. Such were the orders which came to the plaintiff- for goods delivered by it. The goods were sent by the plaintiff to that place as requested by the orders, and they were delivered there, as the evidence tends to prove.

There is usually some difficulty in proving the confederation of parties in a transaction to defraud, conducted apparently by only one or a portion only of those who are sought to be charged; and until they are by evidence shown to have been in the relation of1 conspirators they cannot legitimately be prejudiced by any evidence of the declarations of others charged with the alleged conspiracy. (Cuyler v. McCartney, 40 N. Y. 221; Place v. Minster, 65 id. 89.)

The statement made in the headings of the orders made upon the plaintiff for the goods constituted the representations upon which the plaintiff relied in selling and delivering the goods so ordered, and those representations were so made by the defendant McDermott. They were false, intended as deceptive means to get the goods, and were made to cheat and defraud the plaintiff. The evidence tends to prove the connection of the defendants Joseph W. Elberson and the North American Rubber Company (through his management) with the defendant McDermott in the scheme; that the latter had his office in the factory building of that company at Setauket, from which he issued those orders for goods, and that the defendant Joseph W. Elberson was advised .that he was getting goods on such orders in the name of the fictitious company before mentioned, and some of the goods so purchased were in the factory of' that company and about' its premises. The plaintiff was not' the only victim of such orders for goods, and when his attention was called to the delivery of some of them on such orders, the defendant Joseph W. Elberson stated that he had given McDermott some money to pay on account of them, and that he would see that such party got his pay on the • bills referred to, and he finally said he. would settle the bills of. that party at fifty per cent, and "he added that he would do it out of friendship for McDermott.

While the evidence was sufficient to warrant the conclusion that the defendants Joseph W. Elberson and the North American Rubber Company were concerned with McDermott in the fraudulent scheme,, there was not sufficient evidence to bring the defendants Edwin Elberson and the Liberty Rubber Shoe Company into that relation. It is true that both defendant corporations may have been •mainly under the united control and management of the defendants Elberson, and that the goods obtained upon such orders in the name of the Iroquois Rubber Company were legitimate for the uses of both of those corporations, but there was no evidence implicating the defendant Edwin Elberson personally in the transactions," and none effective to show that the Liberty Rubber Shoe Company was concerned in it, The declarations afterwards made by McDermott relating to that company, unaccompanied by any act relating to the fraudulent enterprise, and no part of the res gestee, were not available to charge it with the relation of complicity with him in the unlawful transactions in question. (1 Greenl. Ev. § 111; 3 id. § 94; New York Guaranty, etc., Co. v. Gleason, 78 N. Y. 503; People v. McQuade, 110 id. 286.)

As against the defendants Charles J. McDermott, the North American Rubber Company and Joseph W. Elberson the judgment and order should be affirmed, and as to the other defendants the judgment and order should be reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment and' order reversed as to the defendants Edwin Elberson and the Liberty Rubber Shoe Company, and a new trial granted, costs to abide the event; as to the other defendants, judgment and order affirmed, with costs.  