
    Samuel F. McCracken vs. Joseph West and others.
    Overruling a demurrer without ajoinder is not error — a joinder may be filed inatanter on hearing in the Court below, and if exception be taken after judgment, it will be considered as filed.
    It is error to admit as evidence of handwriting, the mere opinion and belief of a witness, without his first stating his means of acquiring a knowledge of such hand writing.
    On cross-examination, a question asked of the witness by the defendant, as to what a third person told him, will not authorize the other party, upon a're-examination, to enquire what the third person in the same conversation said the defendant himself had told him — such evidence being hearsay.
    To prove the value of property at a given period, it is not competent to prove at what price the property sold subsequently at a public sale by Trustees, to whom it had been assigned in contemplation of insolvency.
    If it be sought to charge a person with fraud and deceit in representing- another,as worthy of credit, he may, for the purpose of repelling the imputation of fraud, prove what he has said he thought such person worth, prior to the time of making the statement charged to be false.
    If a person write aletter to another, desiring him to introduce the bearer to such merchants as he may desire, and describing him as a man of property, and the person having such letter do not deliver it to the person to whom it is directed, but use it to obtain credit elsewhere, the persons so giving the credit, cannot maintain an action for deceit, though the representations in the letter are untrue.
    
      This is a Writ op Error directed to the Court of Common Pleas of Fairfield County.
    The declaration in the original action is in Case. It avers that the plaintiffs below are Merchants in the city of New York, by the name, of West, Oliver & Co.
    That George Myers of Lancaster, Ohio, on the 2d day of November, 1842, was desirous of purchasing, in New York, a stock of goods partly on credit, and had employed one Z. C. McElroy to purchase said stock of goods for him as his agent, of which the defendant had notice.
    That the defendant, on said 2d day of November, 1842, at Lancaster aforesaid, for the purpose of enabling said Myers to effect his said purchase, partly on credit, in New York, wrote a letter to Wilson, Butler fy Baldwin, of New York, whereby he stated to said W. B. B., “ that said McElroy would leave Lancaster for New York the next day, to purchase a lot of goods for said Myers, and that said Myers’ means would enable him to pay one half or nearly so of his purchases in cash ; and the residue, from Myers’ present calculation, which he, the defendant, thought based upon a substantial foundation, he, Myers, promised to pay in less than six months.” That the defendant in and by said letter, for the purpose aforesaid, did then and there falsely, deceitfully and fraudulently assert, affirm and declare (“that he, the said defendant, considered the said George Myers worth from thirty to forty thousand dollars, and that he, the defendant would have every confidence in said Myers’ punctuality in meeting his engagements,” and in and by said letter informed said Wilson, Butler & Baldwin, “ that their influence in introducing said McElroy to such houses as he might desire, to procure the assortment he might require would be gratefully acknowledged by said Myers,” which said letter the defendant delivered to McElroy.
    That on the 16th November, 1842, at New York, said McElroy was introduced to the plaintiffs; and he, said McElroy, then and there requested them, the plaintiffs, to sell to said Myers goods, &c., upon credit; and that said McElroy then and there exhibited and showed to said plaintiffs the aforesaid letter of said defendant to induce them to sell said goods, &c., to said Myers, partly on credit.
    That the plaintiffs were then and there unacquainted with the character and circumstances of said Myers,, but confiding and giving credit to said assertions of the defendant, contained in said letter, and believing the same to be true, they 'sold to said Myers a large quantity of goods to the value of $700, one half for cash, and the residue upon a credit of six months. Whereas said Myers, at the time said letter was written by the defendant, was not worth thirty to forty thousand dollars, but was and had been for a long time in failing circumstances, and the defendant well knew the same, by reason of which deceitful and fraudulent representation in said letter contained, the plaintiffs have been deceived and imposed upon, and have lost the balance due on said goods and merchandize, and the value thereof, to the damage of the plaintiffs $ 500, &c.'
    
    The declaration was filed July 7th, 1843, and on the 26th of July, 1843, the defendant filed a general demurrer thereto.
    
      No joinder in demurrer appears to have been filed, but the transcript of the proceedings in the case shows that the case came on to be heard upon the demurrer of the defendant to the declaration, and was argued by counsel,, upon the consideration whereof the court overruled said demurrer with costs, and continued the case.
    On the 18th of July, 1845, the defendant put in the plea of the general issue, and at the June Term, 1848, the trial of the issue was submitted to a jury.
    On the trial before the jury the plaintiffs offered in evidence the deposition of Zenas C. McElroy, and the defendant objected to the reading in evidence to the jury the seventh interrogatory, and the answer thereto, contained in the deposition, viz:
    
      
      “In whose hand writing was the letter, and was the proper signature or hand writing of McCracken affixed to it ? ”
    Answer.— “ I have no' doubt that it was McCracken’s writing and signature.”
    The plaintiff also offered in evidence to the jury the depositions of Grove P. Hinman and Lewis O. Williams, to the reading of which depositions, and particularly the copy of the letter referred to in the deposition of Hinman as a copy of the letter of the defendant referred to in the declaration, the defendant objected, as well as to the giving of any secondary evidence of the contents of said letter, without further proof of the loss of the original.
    The Court overruled said several objections of the defendant, above mentioned, and allowed the evidence so objected to, to be given to the jury. To which ruling of the Court the defendant excepted, being the first bill of exceptions filed by the defendant.
    The plaintiff then examined John A. Collins as a witness in chief, and gave evidence by him tending to prove that George Myers was in failing circumstances shortly before the date of the letter of the defendant, set forth in the declaration, and the defendant, on cross-examination of said witness, inqured of him whether he had not indorsed for said Myers in October, 1842, for several thousand dollars, without taking any security against loss ? In answer to which inquiry the witness testified that he had so indorsed without security, and went on to state, and did state, that when Myers requested him to indorse for him on that occasion he expressed to Myers an unwillingness to do so, and that Myers to induce him to do so, said if he, witness, did not, he, Myers, could not get any body else to do it, and that, he must fail if he could not get the money. And thereupon the plaintiff re-examined said witness and inquired of him what Myers said in the same conversation about the defendant, McCracken, indorsing or refusing to indorse the same note for him. To which question the defendant objected; which objection was overruled, and the court held that the plaintiffs were entitled to give in evidence to the jury, all Qf tjie declarations of Myers in the same conversation.
    In the further progress of the- case the plaintiff examined M. A. Daugherty as a witness in chief, who testified that he was the successor to McCracken and Caldwell in executing the deed of assignment made by George Myers, in trust, for the use of his creditors, whereupon the plaintiff inquired of said witness, for what sum McCracken & Caldwell, as-assignees, had sold the real estate of Myers, under said deed of trust, to which question the defendant, by his counsel, objected. The counsel for the plaintiff then explained the object of the evidence to be to show the value of the property of Myers, and thereby as tending to show his insolvency, at the same time stating that in connexion with the answer to said question, they intended to give further evidence, tending to prove that the amount for which said property was so sold was the reasonable value thereof, that the same was sold at public auction for the most it could command, and that the same had not depreciated in value after the representations of the solvency, made by the defendant, of Myers. The defendant still objecting to the relevancy of the question, the court overruled the objection, allowed the question to be put,- and the answer of the witness thereto to go in evidence to the jury.
    The plaintiff having closed his evidence in chief, the defendant examined D. Tallmadge as a witness, and offered to prove by him that a short time before the failure of said Myers, and before the date of the letter referred to in the declaration, the defendant, McCracken, called on the ^witness with a letter in his hand, and stated that he had been called upon, by a letter from the east, to give his opinion, what he thought George Myers was worth, and stated that he had written in reply that he thought he was worth thirty to thirty-five thousand dollars; said witness having previously testified that he was acquainted with Myers before and at the time of his failure, and that he considered him solvent.
    To which evidence so offered to be given of the declarations and statements of the defendant, the plaintiff objected, which objection was sustained by the Court, and the giving of the idence overruled.
    To which opinion of the Court, the defendant excepted, &c.
    The jury having returned a verdict for the plaintiff, assessing damages against the defendant, the defendant filed his motion in arrest of judgment, assigning for cause:
    That the. letter of the defendant was addressed to Wilson, Butler & Baldwin, and was delivered to McElroy without any authority, (so far as appears from any averment in the declaration) from the defendant to exhibit or deliver the same to any person other than W., B. &. B.; and that it did not appear from any averment in the declaration that the acts of McElroy specified in the declaration in requesting the plaintiffs to sell goods to Myers upon credit, and in exhibiting said letter to the plaintiffs to induce them to sell goods to the said Myers on credit, were in any manner had or done by the direction or with the authority of the defendant, but on the contrary were had and done by said McElroy of his own mere motion, and was not,, and is not averred to have been the act of the defendant.
    Which motion in arrest was also overruled by the Court, and judgment entered upon the verdict; to reverse which judgment this writ of error is prosecuted.
    The errors assigned are:
    1st. That the Court of Common Pleas erred in overruling the demurrer of the defendant to the declaration of the plaintiffs ; First, because the plaintiffs had not put in or filed any joinder to said demurrer; Second, because the declaration of the plaintiffs is not sufficient in law to sustain the action, inasmuch as it is not averred therein that the alleged acts of the said McElroy in requesting the plaintiffs to sell said goods to said Myers on credit, or in exhibiting and showing said letter to the plaintiffs to induce them to sell said goods to said Myers on credit, were had or done by the direction or by the authority of the defendant; but on the contrary that it doth appear by the said averments of the declaration, that the said acts of the said McElroy were had and done by him of his own mere motion, and were n°t in any manner directly or indirectly the. act of the Third, because said declaration is in other respects uncertain and insufficient, and particularly in not averring that the said McElroy was introduced by the said Wilson, Butler & Baldwin, to whom said letter was addressed, to the plaintiffs, and in not averring that said letter was ever delivered by said McElroy to said Wilson, Butler & Baldwin, or that the same was in any manner used or disposed of by said McElroy, consistently with the expressed authority thereof, as averred and set forth in the declaration.
    2d. That the Court of Common Pleas erred in admitting the seventh interrogatory, and the answer thereto propounded by the plaintiffs to Zenas C. McElroy as set forth in his deposition, to be read in evidence to the jury.
    3d. That said Court erred in overruling the objection of the defendant to the inquiry by the plaintiffs of the witness, Jno. A. Collins, as to the declarations made by said George Myers about what the defendant should have said about indorsing or refusing to indorse for said Myers.
    4th. That said Court erred in overruling the objection of the defendant to the question of the plaintiffs and the answer thereto, propounded by the plaintiffs to M. A. Daugherty, and in allowing the evidence of the witness in that behalf to go to the jury.
    5th. That the said Court erred in overruling the question of the defendant propounded to the witness Tallmadge, as specified in the bill of exceptions.
    6th. That the Court erred in refusing to arrest the judgment.
    
      H. II. Hunter and T. Ewing &f Son, for Plaintiff' in Error.
    
      John T. Brazee, for Defendants,
   Read, J.

There are three classes of Error complained of in this case.

1st. Error in deciding the demurrer without joinder.

2d. Errors in the admission and overruling of testimony.

3d. That the declaration will not warrant the judgment.

The error under the first head is, that the Court overruled the demurrer to the declaration without a joinder.

A joinder is necessary to constitute a technical issue, and is like a similiter to the general issue. If objected to at the time, it may be filed instantly, and if not, and exception be subsequently taken for this cause, the Court will consider it as having been in. Besides, our statute • provides that a judgment shall not be reversed for mere matter of form.

Under the third head; McElroy was permitted to testify to the hand writing of McCracken without first laying the proper foundation by stating his means of knowledge.

The evidence of hand writing is opinion and belief. The opinion and belief of a witness is not evidence, unless he state the facts and circumstances upon which that opinion and belief are founded ; that the jury may have the means of judging whether such opinion and belief are well founded. But it may be said it don’t matter whether the opinion and belief are first given and then the facts and circumstances, or whether the facts and circumstances are first given, and then the opinion and' belief. But in this respect the order is most material. It is the duty of the Court to exclude illegal testimony, and a mere unsupported opinion and belief are not testimony ; it is the duty of the Court to exclude it from the jury until it become testimony by first stating the means of knowledge which enable the witness to form a correct opinion; and whether the foundation is laid for its introduction is for the Court to decide. But if the Court would violate the order and permit opinion to go to the jury, and then attempt to withdraw it because unsupported by facts and circumstances, it might and probably would make an impression upon the jury which neither the Court or counsel could remove. But in this case the Court admitted mere unsupported opinion, which is manifestly wrong, unsupported by authority, and contradicting both theory and decision.

2d. That defendants counsel asked the question, on cr'ossexamination, as to whether witness had not indorsed for Myers several thousand dollars, in 1842, without taking any secuTo which witness answered that he had, and stated the circumstances under which Myers induced him to indorse. Upon which the plaintiff re-examined the witness and asked him what Myers said in the same conversation about McCcracken indorsing or refusing to indorse said paper. The re-examination in this case was broader than the cross-examination, and therefore wrong. No door was opened in this way to the introduction of mere hearsay evidence. The question was not put to the witness as to what McCracken had said about indorsing or refusing to indorse Myers’ paper, but what Myers said McCracken had said about the matter of indorsement. Thus their admission of such evidence was clearly wrong.

3d. That the Court permitted proof of the amount for which the property of Myers sold under the assignment, to prove the value of the property of Myers, at the date of the declaration in the letter complained of. This is wrong. The true question is, what was the value of the property, not what did it sell for. Property often sells for less than its value, and almost certainly so at forced sales. What the property sold for under such circumstances, would not be evidence to prove its value at a prior time.

4th. The refusal to permit Tallmadge to state what McCracken said he thought Myers worth, previously to Myers’ failure, and previously to McCracken having written the letter upon which he is sought to be made liable, is a matter of some difficulty. It may be said it will not do to permit a man to protect himself by his own declarations. This must depend upon the nature of the declarations, and of the wrong complained of. If McCracken was correct in what he wrote in his letter, he cannot be made liable; he must have written the letter upon which he is sought to be made liable with intent to deceive. If he honestly thought Myers was solvent and worthy of credit, he is not liable. Whether he thought so or not must be gathered from his conduct and declarations, and all those circum stances which go to show motives. Now declarations made when there is no motive to make a false statement as to what a man is supposed to be worth, are certainly evidence of the speaker thinks, unless the presumption be that men are more disposed to speak false than the truth; but the legal presumption and the fact is the other way. And looking ■ at the whole matter, the nature of the charge and the declarations made, I think the declarations of McCracken, thus made, were evidence, and should have been admitted.

The 3d error is, that the declaration does not warrant the verdict.

This error is raised upon the demurrer and the motion in arrest of judgment, and the demurrur and the motion in arrest in this case are precisely the same in the effect which they must produce, and will be considered simply under one aspect.

Is the declaration, then, in this case, sufficient to warrant judgment for the plaintiff?

The declaration avers that McCracken wrote the letter upon which he is sought to be made liable, delivered it to McElroy, the agent of Myers, and directed the same to Wilson, Butler & Baldwin, requesting them to use their influence in introducing said McElroy to süch houses as the said McElroy might require in making up his assortment. It is not averred in the declaration that said letter was delivered to Wilson, Butler & Baldwin, or that Wilson, Butler & Baldwin introduced said McElroy to the plaintiffs. The letter was not one of credit, but a simple request of friendly assistance on the part of Wilson, Butler & Baldwin, to introduce said McElroy to such houses as he might desire; and as inducement to assistance, the circumstances of Myers were stated by McCracken. McElroy was not authorized to deliver this letter to any other person than Wilson, Butler & Baldwin; nor were Wilson, Butler & Baldwin under any obligations to introduce said McElroy to the plaintiffs, nor is there any averment- that they did so.

There is no connexion, then, whatever, between the plaintiffs ant^ McCracken. The wrongful use of this letter by McElroy, cannot make McCracken liable. The letter not being written to the plaintiffs, they had no right to rely upon it, unless it came to them through the proper channel.

If a false statement should be made to one person to induce him to do a particular act, the balance of the world have no legal right to rely upon it; and if they do so, and suffer from it, they cannot recover compensation against the person who made the false statement.

There is no dispute about the general principles of law which govern actions of deceit, or that a man is responsible for the truth of his assertions, made to enable another to acquire credit. But the difficulty in the case, stated in the declaration, is, that the statements in the letter, if false, were addressed to one set of persons, to induce them to act, and there is no averment that such letter was ever delivered to them, or that they acted as requested; but that the letter was used for a different purpose, and relied upon without legal authority by the plaintiffs.

But it is said that the design of McCracken was to give a general credit to Myers. The presumption of the law is, that McCracken acted honestly, until rebutted. Nor can he be made liable beyond what he actually did, and being charged with falsehood and deceit, he can only be made liable on strict averment and proof. The direction of the letter was special, nor is there any averment or proof that it was designed for general use. Nor can it be said, had the letter been rightly delivered, whether the contents were true or false, that any injury would have accrued to the plaintiffs. But it is contended that the lack of averment is cured by verdict. This is not the case of a good title, defectively stated; but it is the statement of a defective title. The case made in the declaration is not sufficient to warrant judgment, and therefore it is not cured by verdict.

We are therefore of opinion that the declaration is not sufficient ; and therefore for this cause, and others heretofore noted, the judgment is reversed.  