
    Lee et al. v. Taylor et al.
    
    
      (Supreme Court, General Term, First Department.
    
    May 23, 1890.)
    1. Conspiracy—Several Actions.
    Where an insolvent firm has been enabled to conceal its financial condition, by means of a conspiracy between it and one of its creditors, and has thereby obtained a fictitious credit, on the strength of which it made separate and distinct purchases of goods at different times, the seller may maintain a separate and distinct action for the damages resulting from each sale against both the insolvent firm and the creditor, as the gist of such action is not the conspiracy, but the damages suffered by the seller.
    2. Estoppel—By Record—Settlement op Former Action.
    The settlement of a former action, brought by the seller against the creditor for a portion of the goods thus fraudulently purchased, based on the theory that the seller’s title had not passed owing to the insolvents’ fraud in purchasing them, and that the creditor had received them with knowledge of that fraud, is no bar to another action for damages sustained by the seller by reason of the purdhase of other goods by the insolvents in pursuance of the same fraudulent design.
    Appeal from special term, New York county.
    Action by Stephen Lee and William Whiting, as surviving partners of Lee & Sturgis, against Hugh F. Kendall, Charles B. Kendall, and John L. Taylor, for the purchase price of several bills of goods sold defendants Kendall. Plaintiffs alleged that the Kendalls were insolvent when each of the sales was made; that they obtained the goods on false and fraudulent representations as to solvency, and in reliance on a fictitious credit resulting from a conspiracy between them and defendant Taylor, one of their creditors. This conspiracy, it vras alleged, had been previously entered into between defendants for the purpose of securing to Taylor the full amount of his indebtedness. In pursuance thereof the Kendalls were to purchase goods on credit, sell as much, thereof as possible, turn over the proceeds and the unsold goods to Taylor until his entire debt was paid, and then make an assignment for the benefit of creditors. To enable them to make such purchase on credit Taylor was to sustain their credit until his debt had been fully paid. Plaintiffs averred that by means of several replevin suits they had been enabled to collect or compromise part of their claim, but that there was still due them $27,301.47. As a separate defense, defendant Taylor averred that plaintiffs had previously brought an action against him for the same matter; that after he had answered the matters in dispute were compromised, and on paying them $4,000 plaintiffs released their cause of action. Plaintiffs’ demurrer to this separate defense was overruled, and they appeal.
    Argued before Van Brunt, P. J., and Bartlett and Barrett, JJ.
    
      Francis C. Barlow, for appellants. John A. Mapes, for respondents.
   Barrett, J.

The question here is whether the plaintiffs’ right of action was single and entire, or whether they had a separate and distinct cause of action for each bill of goods sold. The action is what would formerly have been called an “action on the case in the nature of conspiracy, ” and it is well settled that the damage to the plaintiffs, and not the conspiracy, is the gist of such an action. Tappan v. Powers, 2 Hall, 277; Jones v. Baker, 7 Cow. 445; Hutchins v. Hutchins, 7 Hill, 104; Lubricating Co. v. Everest, 30 Hun, 588; Verplanck v. Van Buren, 76 N. Y. 259. “An allegation of conspiracy,” as was said in Lubricating Co. v. Everest, “between the defendants to commit the act complained of is of no importance, so far as it respects the cause and ground of action. * * * If there be a failure to prove the combination, then the plaintiff is entitled to a verdict against either defendant upon whom an unlawful act is proved to the damage of the plaintiff.” In Verplanck v. Van Buren, supra, Folger, J., said that “in such action the evidence of a technical conspiracy is not essential. The damage is the cause of action, and the conspiracy mere matter of aggravation;” citing Skinner v. Gunton. 1 Saund. 228d, note 4. Proof of conspiracy is only essential when a verdict is demanded against two or more defendants; and the practical importance of such proof arises from the rule which thereupon permits the plaintiff to give in- evidence the declarations of co-conspirators as against each other-while engaged in furthering the conspiracy. It is apparent, therefore, that the cause of action set up in the complaint was not single and entire. The-goods fraudulently obtained were purchased on many different days between August and November, 1882. ■ Each purchase was a distinct and several act of fraud, for which the plaintiff was entitled to maintain a separate action. This was not affected by the defendant’s general purpose, nor by the fact that such purpose was continuous. The rule laid down in Secor v. Sturgis, 16 N. Y. 548, was misunderstood or misapplied at the special term. The-court in Secor v. Sturgis said “ that it was entire claims only which cannot be divided,—those which are single and indivisible in their nature. The cause of action in the different suits must be the same. The rule does not prevent, nor is there any principle which precludes, the prosecution of several actions-upon several causes of action. * * * A party upon whose person or property successive distinct trespasses have been .committed may bring a separate suit for every trespass.” And again; “The true distinction between demands or rights of action which are single and entire and those which are several and distinct is that the former immediately arise out of one and the same act or contract, and the latter out of different acts or contracts. Perhaps as simple and safe a test as the subject admits of by which to determine whether a case belongs to one class or the other is by inquiring whether it rests upon one or several acts or agreements. ” In the present case, each sale was, as already observed, separate and independent. Such sales were-made upon a credit of from two to four months. For a part of these sales the plaintiff received 27 separate and distinct promissory notes, dated on different days, and maturing on different days. It is plain, as was said in Zimmerman v. Erhard, 83 N. Y. 78, that these “different sales did not constitute one entire and indivisible demand, and the plaintiffs could bring separate actions for each separate sale, or for all Of them together, as they saw fit. The different demands were like several promissory notes, or several distinct trespasses, and in the nature of separate and distinct transactions, for each of which a separate action might be brought.” Of course, if the gist of the action here was the conspiracy, it might well be deemed “single and entire. ” It could, perhaps, then be argued that there was but one conspiracy, and that each purchase in furtherance thereof was but an element of the general damages. -That theory falls when the conspiracy is eliminated as the gist of the action. So upon, the theory of separate and distinct frauds, if any one purchase on any given day had embraced several items, the principle contended for by the defendants would doubtless apply to each of such items. Farrington v. Payne, 15 Johns. 432; Smith v. Jones, Id. 229; Miller v. Covert, 1 Wend. 487. But where separate and distinct purchases were fraudulently made upon different days, we have no doubt that a separate cause of action accrued to the plaintiffs for the damages resulting from each purchase as an independent act of fraud.

We think, too, that it was the intention of the parties to limit the settlement set up in the answer to the particular claim embraced in the then pending action. It will be observed that that action was against but one of the present defendants, and was simply for the conversion of certain specified goods, valued at upwards of $12,000. There was no formal charge of conspiracy, but the defendant was sought to be held because of his alleged connivance with the purchasers. The suit was settled for $4,000, in the defendant’s notes, which were received (according to the tenor of the instrument then signed by the plaintiffs) “in full settlement and discharge of all claims embraced in ” that action, and “of the cost thereof. ” It was held, in O'Beirne v. Lloyd, 43 N. Y. 251, that parties may make a valid agreement to sever an ■entire demand, and compromise the part sued for, leaving the residue to ■stand; and that such a reservation may be inferred from the circumstances. We think such a reservation should be here inferred. The action was settled for about one-third of the sum claimed. It was an action against Taylor alone. It proceeded upon the legal theory that certain goods belonging to ■the plaintiffs, the title to which had not passed, owing to the vendee’s fraud, were found in Taylor’s possession, and that he had received them, not as a bona fide purchaser, but with notice of the fraud. The plaintiffs thereupon alleged a demand of the goods from Taylor and a refusal to deliver them, to their damage some $12,000. What was intended to be settled was that specific claim for the refusal to deliver to the plaintiffs upon demand the specific goods found in Taylor’s possession. That, and nothing else; certainly not a claim against Taylor and the purchasers of the goods for damages resulting from a series of frauds, one of which happened to cover the particular goods embraced within the action against Taylor alone for conversion. We think, therefore, that the judgment appealed from should be reversed, with costs, and the plaintiffs’ demurrer to the twentieth clause of the defendants’ answer sustained, with costs. All concur.  