
    George Morris and Edmund Lewis, App’lts, v. Edwin M. Wells, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed September 19, 1889.)
    
    1. Reference — Refusal to find.
    The refusal of a referee to respond to a request to find is not a ground for reversal, unless such refusal was prejudicial to appellant.
    2. Replevin — Fraud in sale.
    In an action to replevin goods, on the ground that the sale was induced by fraud, the referee refused to find that plaintiff relied on the false representations made by defendants, although there was evidence of that fact. There was no proof or finding that the representations were known to be false by the party making them, or that they were made with intent to defraud. Held, that the error in refusing to find as requested was not prejudicial to plaintiffs.
    3. Same — Discrediting witness.
    Plaintiffs asked a witness called by them if he had, on a prior occasion, testified to a certain fact, and if so, if it were true. Held, that they could not discredit their witness by proof of contradictory statements; that for any other purpose the form of the question was objectionable, and the court was justified in excluding the answer.
    4. Same — Fraudulent intent.
    In an action to replevin goods from an assignee, on the ground that the sale was induced by fraud, it is not error to permit the assignor (vendee) to testify that he did not purchase them with intent to cheat the plaintiffs, nor with intent not to pay for them.
    5. Same — Mercantile agencies.
    A statement sent to a mercantile agency by a person other than the vendees, and with which they are not connected in any way, is not evidence against them, nor against their assignee, although he be the person who sent such statement.
    Appeal from a judgment, entered in Onondaga county, in favor of the defendant on the report of a referee. The action was replevin. It was brought to recovef certain articles of personal property sold by the plaintiffs to the firm of Scoville & Roe. The plaintiffs sought to rescind the contract and recover the property in question upon the ground that the sale thereof was induced by fraud. The defendant was the assignee for the benefit of creditors of the firm of Scoville & Roe.
    On the trial the referee found that the plaintiffs were partners; that the defendant’s assignors were also partners at the time of the sale of the goods referred to in the complaint; that the defendant was a counsellor at law doing business in the city of Syracuse; that on the 20th of September, 1887, Scoville & Roe made a general assignment, for the benefit of their creditors, to the defendant, which was accepted by him, and that he duly qualified and entered upon the discharge of his duties as such; that by such assignment preferences were made to the amount of $1,169.-19; that the purchase of the goods in question was made in the usual and ordinary course of business,- and was necessary for the business of the defendant’s assignors; that the plaintiffs sold said goods relying upon a communication or report of the financial standing of Scoville & Roe made by the Wilber Mercantile Agency about April 13, 1887; that such communication was not based upon any statements or information furnished by or received from Scoville & Roe, or either of them, and that it was made without their knowledge or consent; that said goods were not purchased by Scoville & Roe with the preconceived design not to pay for them; that no false representations were made by them to the plaintiffs, upon which they relied, to induce the sale of the goods in question; that the value of the goods replevied was $233.32; that the title to such goods was in the firm of Scoville & Roe at the time of their failure, and passed to the defendant; that the damages for the detention of such goods was $9.33.
    The referee found as a conclusion of law that the defendant was entitled to judgment for the possession of the property in question, and if it could not be recovered, then for its value, and the sum of $9.33 damages for its detention, with costs.
    The referee at the request of the plaintiffs also found among other things that in the month of April or May, 1887, Scoville & Roe purchased of the plaintiffs’ agent the goods referred to in the complaint; that previous to taking the order and making such sale, the agent made inquiries of Scoville, one of the assignors, regarding the standing and responsibility of such firm and the members thereof for the purpose of ascertaining the credit of said firm and taking their order for the goods referred to in the complaint; that at the time of making such inquiries Scoville stated to said agent that he, Scoville, was personally worth $6,000; that such statement was false; that it was communicated to the credit man of the plaintiffs before the shipment of the goods in suit and before the delivery thereof to the defendant’s assignors; that on or about the 17th of August, 1887, between that day and the fourth of September of that year, the plaintiffs delivered to the defendant’s assignors the goods so sold; and that the goods were received and accepted by them.
    
      Sam. H. Wandell, for app’lts; C. V. Kellogg, for resp’t.
   Martin, J.

The only question relating to the finding of the referee, or to his refusal to find as requested by the plaintiffs, which we deem it necessary to examine, arises upon his finding “ that no false representations were made by Scoville & Roe to the plaintiffs, upon which the plaintiffs relied, to induce the sale of the goods in question,” and upon his refusal to find “ that plaintiffs’ agent relied on the said statement so made by Scoville that he was personally worth $6,000, and sold the bill of goods referred, to in the complaint upon the strength of such representation.”

The plaintiffs excepted both to the finding referred to and to the referee’s refusal to find as requested. “ Exceptions to alleged findings of fact, when they are unsupported by evidence, and to the refusals to find, when they are established by undisputed proof, present questions of law, and are reviewable on appeal.” Bedlow v. N. Y. Floating Dry Dock Co., 19 N. E. Rep., 800; 20 N. Y. State Rep., 707; Bullock v. Bemis, 20 N. Y. State Rep., 836.

The referee found that the goods m question were sold by the plaintiffs’ agent; that at the time of the sale he made inquiries of Scoville, one of the vendees, as to the standing and responsibility of the firm and the members thereof; that Scoville stated that he was worth $6,000, and that such statement was false. The undisputed evidence was that the agent relied upon such representations in making such sale. Woolston, the plaintiffs’ agent, testified as follows: “ I sold the bill of goods on the information I got from Scoville direct. The purport of it was that Scoville was individually good for $6,000.” Folio 73. “The conversation was to the effect that Mr. Scoville was personally worth $6,000, and upon that I based by judgment in selling the goods.” Folio 68.

If the representations were made, and the referee has so found, then it is clear from the evidence that the plaintiffs’ agent relied upon them in making such sale, and the learned referee erred in refusing to so find, and in finding to the contrary, although the plaintiffs made other investigations as to the responsibility of such firm and its members before shipping the goods. FTor can it be said that the findings contained in the referee’s report are to control. Such is not the rule. If the findings are inconsistent, the appellants are entitled to the finding most favorable to them. Redfield v. Redfield, 110 N. Y., 671; 18 N. Y. State Rep., 560.

Assuming, as we must, that the referee erred in such finding, and refusal to find, it follows that the judgment must be reversed, unless the error was a harmless one. The refusal of a referee to respond to a request to find is not a ground for reversal, unless such refusal was prejudicial to the appellant. Matter of Hicks, 14 N. Y. State Rep., 320.

While the findings of the referee, and the undisputed evidence in the case establish the making of such representations, their falsity, and that they, were relied upon in making such sale, still there is no finding of the referee, nor conclusive evidence to the effect that such representations were known to be false when made, nor that they were made with an intent to defraud the plaintiffs,, but, on the contrary, the referee refused to find that such sale was induced by the fraud of the defendant’s assignors.

Before the defendant’s assignors could be found guilty of fraud, and the sale of the goods in question avoided on the ground of. such representations, it was necessary to establish that the representations were known to be false by the person making them, and that they were made with an intent to defraud the plaintiffs. Meyer v. Amidon, 45 N. Y., 169; Oberlander v. Spiess, id., 175; Hubbell v. Meigs, 50 N. Y., 480; Wakeman v. Dalley, 51 id., 27; Simar v. Canaday, 53 id., 298; Stitt v. Little, 63 id., 427. There being no such proof or finding, we do not perceive how the plaintiffs could possibly have been injured by such error, as in the absence of such findings the result must have been the same. Moreover, the plaintiffs submitted no request to find those facts. Porter v. Smith, 35 Hun, 118; Graff v. Ross, 47 id., 152; 14 N. Y. State Rep., 636. Our conclusion is that this error of the referee was harmless, and hence would not justify a reversal of the judgment.

On the trial, the plaintiffs attempted to prove the declarations of one of the defendant’s assignors made at various times before the assignment. This evidence was objected to by the defendant. The objection was sustained, and the plaintiffs excepted. The plaintiffs contend that the referee erred in excluding that evidence. We think the ruling of the referee was justified by the authorities. Truax v. Slater, 86 N. Y., 630; Bullis v. Montgomery, 50 id., 352; Vidvard v. Powers, 34 Hun, 221; Flagler v. Wheeler, 40 id., 125; Flagler v. Schoeffel, id., 178. If these rulings were erroneous, still the plaintiffs were not predjudiced, as the questions were subsequently answered by the witness.

The plaintiffs called one of the defendant’s assignors as a witness, who testified that he was employed by the defendant at a salary of fifteen dollars per week. He was then asked if he testified, on an examination in supplementary proceedings, as follows: “I suppose I am on a salary. There was no arrangement as to the amount I was to receive;” and he replied, “ I might have sworn to it.” This was followed by the question: “If you did so swear, was it true?” This question was objected to, and the objection was sustained.

It is quite apparent that the only purpose of this evidence was to affect the credibility of the witness by the proof of contradictory statements. As the witness was called by the plaintiffs, the evidence was not admissible for that purpose. Becker v. Koch, 104 N. Y., 394; 5 N. Y. State Rep., 588. If, however, the evidence was sought for any other purpose, the question in that form was objectionable, and the court, in its discretion, was justified in excluding the answer.

The defendant introduced in evidence the inventory of the firm of Scoville & Roe, under the plaintiffs’ objection and exception. The ruling of the referee in admitting this evidence seems to be justified. Adams v. Bowerman, 109 N. Y., 23; 14 N. Y. State Rep., 43. Besides, the same facts were proved by the plaintiffs on a direct examination of the witness Scoville.

It was not error to permit the defendant’s assignor to testify that he did not purchase the goods in question with an intent to cheat the plaintiffs, nor with an intent not to pay for them. Seymour v. Wilson, 14 N. Y., 567; Cortland County v. Herkimer County, 44 id., 22.

The plaintiffs asked the witness Woolston this question: “Did you rely upon this statement ?” referring to the statement that Scoville was worth $6,000. This was objected to and excluded. If this was error, it was harmless, as the witness had already testifled that “ the conversation was to the effect that Mr. Scoville was personally worth $6,000, and upon that I based my judgment in ■selling the goods. I sold the bill of goods on the information I got from Scoville direct The purport of it was, that Mr. Scoville was individually good for $6,000.” This evidence shows clearly "that the plaintiffs’ agent did rely upon such statement in making the sale.

Hor do we think the refusal of the referee to permit the witness Woolston to answer the following question: “Did you believe this statement to be true?" requires a reversal of this judgment, ■ as he was permitted to testify that he based his judgment on that statement in selling the goods, which shows clearly that he believed it.

The statement sent by Wells to the Wilber Mercantile Agency was properly excluded. It was not admissible. The defendant's ■assignors knew nothing of it, and were not shown to have any ■connection with it in any way. It was not evidence against them, nor was it proper evidence in the action against the defendant.

The counsel for the appellants has called our attention to thirty exceptions relating to the admission or rejection of evidence by the referee. Most of them seem not to have been deemed suffi■ciently important to merit any suggestion or remark by counsel, except to state the folio where found, and that they “ were well taken.” We have, however, examined them all. The preceding •considerations apply to many and the most important of them. Our examination of the remainder has led us to the conclusion that they neither require special discussion nor warrant a reversal of the judgment.

We are of the opinion that the decision of the referee is justified by the evidence, and that no error was committed on the trial that would authorize any interference with the judgment appealed from.

Judgment affirmed, with costs.

Hardin, P. J., and Merwust, J., concur in result  