
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1900.)
    Before Smith, Swing and Giffen, JJ.
    THE GALLIPOLIS FURNITURE CO. v. W. W. SYMMES, Assignee, et al.
    
      False representation by purchaser — Intention to pay— General exception to charge — Notes taken in settlement—
    Error to the Court of Common Pleas of Hamilton county.
    
      Kelly & JHauck , for Plaintiff in Error.
    
      W. W. Syrnmes, contra.
   GIFFEN, J.

The action below was in replevin, being submitted to the-jury on the petition and evidence of the plaintiff, without any answer or evidence by the defendants, and resulting in a verdict for the defendants. The court erred in overruling a motion for judgment in favor of plaintiff notwithstanding the verdict.

The evidence shows that the plaintiff was induced to sell certain goods to Kellar, the assignor, by reason of representations of the latter that he was indebted only in the sum of $000 for goods in transit and $900 on a mortgage on his residence, and that the residence was worth $2,600, whereas in fact to© was owing his wife, and had been for thirteen years, the siam of $800, and the residence was worth only $1,500. He was bound to know the truth of such representations and mere belief in their truth will not exouse.

The verdict was manifestly against the weight of the evidence, and can only be explained on the theory that the jury were by the charge of the court led to believe that before they could find for the plaintiff it must appear from the evidence that the purchaser not only made false and fraudulent representations, but did not intend to pay or had no reasonable expectations of being able to pay. It was immaterial in this case whether he intended to pay or had reasonable expectations of being able to pay.

The exception to the charge of the court is too general and can not be considered, this case having been commenced prior to the amendment to section 5298, Revised Statutes, in April, 1898.

The notes taken in settlement of the accounts after the latter became due did not prevent a recovery by plaintiff, it then having no knowledge that the representations were false, and having tendered the notes before the action was commenced. This being so, there was no error in the court giving to the jury the two special charges, at the request of the defendant».

Judgment reversed and cause remanded.  