
    (72 Hun, 138.)
    WELCH et al. v. SELIGMAN.
    (Supreme Court, General Term, First Department.
    October 13, 1893.)
    1. Deceit—Evidence—Dismissal.
    In an action for damages for obtaining goods through false pretenses, and with the preconceived design not to pay for them, it is error for the court to dismiss the complaint at the close of plaintiffs’ evidence, which shows that defendant, in order to obtain the goods, misrepresented the amount of his property, the amount of his liabilities, the condition of his business, and the use which he intended to make of the goods.
    2. Inconsistent Actions—Deceit in Obtaining Goods—Replevin.
    Such action is in disaffirmance of the sale, and not inconsistent with a replevin action previously brought by the seller to recover the goods.
    Appeal from circuit court, Hew York county.
    Action by Peter A. Welch, Andrew M. Sherrill, and Moses E. -Clark, partners as Welch, Holme & Co., against Solomon Seligman, for damages for obtaining goods through false pretenses, and with the preconceived design not to pay for them. From a judgment dismissing the complaint on an order granted at circuit, plaintiffs -appeal.
    Reversed.
    Argued before O’BRIEH, P. J., and FOLLETT and PARKER, JJ.
    
      Artemus B. Smith, for appellants.
    David Leventritt, for respondent.
   FOLLETT, J.

This action is for the recovery of damages for obtaining goods through false pretenses, and with the preconceived, design not to pay for them. In May, 1891, the plaintiffs were partners under the name of Welch, Holme & Co., and in that month-they sold and delivered to the defendant, at the city of Hew York,. 60 casks of alkali, at the agreed price of $1,921.59, payable June 1,. 1891, no part of which has been paid. Fifteen of the casks were delivered May 4th; fifteen, May 12th; eight, May 18th; and twenty-two, about the 26th of May. One of the plaintiffs testified that the-defendant was introduced to him in February, 1891, by Mr. Kuschowsky, and that on that occasion the following conversation was-had:

“I then asked him [defendant] in regard to his means, and he said thatr he had bought out ICuschowsky, and paid him $1,500 in cash. Furthermore, I asked him, ‘Are all your fixtures and apparatus clear?’ He said they were;, that there was no incumbrances on them whatsoever, and T want to makearrangemeri-ts with you to furnish me with alkali.’ I said we would be glad to ^ell to him if we could make satisfactory arrangements. ‘How do-you propose to pay?’ He said, T will pay you on the first of every month,- and 1 will want deliveries of alkali at different times.’ I told him this was-a cash article. He said, ‘I will pay you the first of every month any purchases previous to the first. You can rely on getting your money on the first of the month, and the statements I make to you are strictly true. I am an. honest man, and I have property in the west,—about $2,000 worth of property.’ ”

In February the defendant purchased of the plaintiff 6 casks of' alkali, which he paid for March 1st. In March he purchased 30- . casks, which he paid for April 1st. In April he bought 34 casks,, which he paid for May 1st. In May he purchased the 60 casks, for which he failed to pay. At the time he ordered the 60 casks the following conversation occurred:

“I [one of the plaintiffs] said, ‘That is a large quantity. Your business-must be increasing very rapidly.’ He said it had, and he' wanted that quantity, and would have to have it, because he had orders to fill for sal soda, that would require that quantity of alkali during the month. He said, further, T will do as I agreed, and pay you the -first of every month.’ ”

The defendant took 16 of the casks which were delivered on the-26th of May to a warehouse on the same day, and received a negotiable warehouse receipt in the name of E. L. Goldnsor, representing to the person from whom he received the receipt that that was his-name. He represented at the time of taking the receipt that he had a surplus of alkali, and wanted to raise some money on it, and gave that as a reason for getting the warehouse receipt. Shortly afterwards he tried to sell the receipt to one Green, requesting him. at the time not to tell the plaintiffs’ firm about his offer to sell. It was proved beyond dispute that the defendant agreed to pay but $800 for the plant, instead of $1,500, which he purchased of Kus-' chowsky, and that he paid in cash $200, and gave his notes for the-remainder, which have never been paid. On April 28, 1891, defendant gave his promissory note to Harris J. Bramson for $.620, due in,. 20 days, which was not paid at maturity; and May 25, 1891, an action was brought thereon in the city court of Few York, and June 2, 1891, a judgment recovered thereon against defendant, on which an execution was immediately issued, under which the sheriff levied on the defendant’s property, and took possession of his place <of business. Immediately after the levy, one of the plaintiffs called on the defendant, and had the following conversation:

“I askccl him at an interview at my office what had become of the prop■erty he represented himself possessed of to me. He said he didn’t know. He had to pay little debts here and there, current expenses, and other little •things, and he couldn’t say. He said that the Bramson judgment that the •sheriff had got into his place on was entirely unexpected to him. I asked him what had become of our alkali that had been delivered to him in May, •or any part of it. He said a few casks were in the place, but the others had been used up, and he didn’t know. Things were in a kind of mixed-up •shape, and he didn’t know what had become of anything. He couldn’t give an account of anything. He gave me no satisfaction concerning the remaining casks. I asked him if he had stored away any of it. He said, T decline to answer.’ ”

In another interview with one of the plaintiffs the defendant •said, if forced to sell, he could not pay more than two or three :hundred dollars; that he might pay 25 per cent, of his indebtedness. The person of whom defendant purchased the factory testified that not more than 30 casks of alkali could be used in the factory in •any one month; that it had not capacity to use more. The evidence was sufficient to have justified the jury in finding that the defendant misrepresented (1) the amount of his property; (2) the amount ■of his liabilities; (3) the condition of his business; (4) the use which he intended to make of the 60 casks of alkali purchased in May. "These propositions, being found in favor of the plaintiffs, would have sustained a verdict that the goods were acquired by false representations, and with the preconceived design not to pay for them. This is not an action on the contract to recover the agreed price, but an action in disaffirmance to recover damages for the fraud ■álleged to have been practiced, and there is nothing in the point that this action is inconsistent with the replevin action previously brought, as the learned trial judge correctly held. The judgment should be reversed, and a new trial granted, with costs to the appellants to abide the event. All concur.  