
    Ernest Redfern, Doing Business under the Firm Name of John Redfern & Sons, Respondent, v. Henry M. Cornell, Appellant.
    
      Deceit — statement as to the solvency of another—facts establishing insolvency — representations, made with knowledge of their falsity, justify an inference of intent to deceive.
    
    In an action brought to recover damages because of deceit, it appeared that the defendant was living with a person who represented herself to be Mrs. J'. H. Martin, in a house rented to her upon a guaranty of the .defendant, who represented himself to be her husband. In December, 1891, this woman asked credit • of the plaintiff in the purchase of a considerable amount of goods, and gave as a reference the defendant, to whom the plaintiff wrote, inquiring to what extent he would be justified in giving her credit, to which the defendant replied that she was good for anything she might order.
    
      Subsequently Mrs. Martin disappeared, leaving a bill owing by her to the plaintiff unpaid.
    
      Held, that it was necessary that the plaintiff, in order that he should succeed, should prove that representations were made by the defendant as to the solvency of Mrs. Martin; that they were false when made; that they were known by the defendant to be false; that they were made with intent to deceive, and that the plaintiff relied upon them to his damage;
    That proof that Mrs. Martin had, while living with the defendant, incurred debts to various tradesmen, and had disappeared without paying them, warranted the jury in finding that she was insolvent, and that the defendant’s representation as to her being entitled to credit was false;
    That as the jury were at liberty to find that the defendant had made a false representation with reason to believe it to be untrue, an intent to deceive might fairly be inferred from the falsity of the representation;
    That the fact that Mrs. Martin ’in 1894 received some §11,000 in payment of notes signed by the defendant, and dated at various times in 1892, did not prove that she had any property when the representation as to her solvency was made by the defendant. .
    Appeal by the defendant, Henry M. Cornell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of November, 1895, upon the verdict of a jury rendered after a trial -at the New York Circuit, and also from an order bearing date the 26th day of November, 1895, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon, the minutes.
    
      Lemuel SMdmore, for the appellant.
    
      W. P. Knapp, for the respondent.
   Rumsey, J.:

The action was for deceit. Substantially, all the material testimony in the case was given on the part of the plaintiff. The defendant was not sworn as a witness, and the grounds upon which the judgment is sought to be reversed are technical, and based substantially upon the claim that the evidence of the plaintiff was not sufficient to warrant the finding of the jury.

It appeared that the plaintiff was doing business under the firm ■name of John Redfern & Sons in the city of New' York; that on a certain day in December, 1891, a woman, representing herself to be Mrs. J. H. .Martin, appeared at the place of business of the plaintiff, and asked for credit to a considerable amount for. goods which she desired to purchase. She was asked for a reference, and gave as a reference the defendant. The plaintiff thereupon wrote to the. defendant, saying that he was referred to him by Mrs. Martin; that she was asking for credit, and inquiring ing of him if he was justified in giving her credit; and, if so, to what extent. To that he received the following letter:

Dec. 28.
“62 Pabk Avenue.
“ Messrs. Redfébn :
“ Answering yours of date, the party mentioned (Mrs. J. IT. Martin) is good for anything she might order. Mr: Martin is perfectly well-known to me. Yours,
“ HENRY M. CORNELL.”

It appeared from the testimony, and was not denied, that, at that time, the Martin woman was living in No. 23 West Fifteenth street with the defendant, who passed himself off at that place as Mr. J. H. Martin. Relying upon that letter, the plaintiff, during the months- of February. and March, 1-892, furnished goods to Mrs. Martin to the amount of $2,162, for which he was never paid. It further appeared from the testimony,.and was not disputed, that on more than one occasion, when goods were sold to Mrs. Martin, the defendant, under the name of Martin, was with her and assisted in the selection of the goods, and that, at various- times, he had communication with the plaintiff about them, and, finally, after the bill had been presented, he procured it to be brought to him, and examined it and assented to its correctness. Mrs. Martin finally disappeared, and this bill not having been paid, the plaintiff brought an action for damages to the amount of the bill for the deceit which he claims was practiced upon him by the defendant in falsely representing that she was entitled to credit.

In such actions, as is well known, it is necessary for the plaintiff to prove that the representations were made by the defendant; that they were false when made, and were known by the defendant to be false; that they were made with intent to deceive, and that the plaintiff relied upon them to his damage. That the representations were made is conceded; that the plaintiff relied upon them to his serious damage is not disputed, but was proved upon the trial. It is claimed, however, that there is not sufficient proof that the representations were false, or that they were known by the defendant to-be false, or that he made them with intent to deceive.

With regard to the falsity of the representations, it appears that this woman was living with Cornell under the name of Martin as a-kept woman; that the- house was rented to her upon his guaranty ; that he was in her company a large portion of the time, and that he passed himself off as her husband. There was evidence from which the jury might find that he was the head of that house. Taking all those- things together, it is quite clear that the jury would have been, justified in coming to a conclusion that the man who was living in these intimate relations with the woman, and who claimed to be her husband, was familiar with her financial condition. That the representations were false was clear from the facts. It appeared that for several months while the woman was living in that vicinity with the-defendant, she incurred debts to various tradesmen, and that finally she disappeared without paying those debts, and that they remained unpaid at the time this action was brought. This evidence was sufficient to warrant the jury in finding that she was insolvent. It is quite true that there was evidence on this particular point on behalf of the defendant, to the effect that in 1894-Mrs. Martin presented to the defendant’s brother, notes signed by the defendant himself to the amount of something like $11,000, which were paid; and it also appeared that these notes were dated at various times in 1892 when the defendant and the woman were living together, and that she claimed they were given for borrowed money. But the only fact that was- established by that testimony was, that the notes were dated in the early part of 1892, and that they were paid in the year 1894. There was no evideiice given on the trial of the truth of the-declarations that they were given at the time they bore date, nor was there any evidence whatever that they were given for borrowed money; and the jury were not hound to take these declarations of Mrs. Martin, as to the truth of which the jury knew nothing whatever. All that appeared in the case, therefore,-was, that this woman, being a kept woman, living with a man who was not her husband and supported by him, had absconded without paying her debts' shortly after this large bill was contracted, and that two years after-wards she came into possession of a considerable amount of moneys 'This evidence was sufficient to warrant the jury in finding that at the time this representation that Mrs.. Martin was good for anything she might- order, was made, it ivas not only false, but that the defendant had reason to believe it was not true. When that state of facts appears, the intent to deceive may fairly be inferred from the falsity •of the declarations. (People v. Herrick, 13 Wend. 87.)

It is quite true that the evidence upon these points is slight, but it was sufficient to require the jury to pass upon the facts; and how-over slight may have been the testimony, they had a right to consider in passing upon the facts .that, such as it was, it was entirely "undenied and unexplained by the defendant, who was able to •explain any suspicious circumstances and tell precisely what he knew with regard to the financial condition of this woman and his reía-' tions with her. The jury might apply the rule that where one who has at hand evidence which might explain away suspicious circumstances does not choose to give that evidence, it is a fair inference, of fact that he could give no explanation which would remove them.

Several exceptions -were taken to the rulings of the court upon the admission of evidence. These exceptions Ave have examined, .and we are satisfied that they are of no importance.

The judgment and order should be affirmed, with costs.

Van Brunt, P. J., Barrett, O’Brien and Ingraham, JJ.,' -concurred.

Judgment and order affirmed, with costs.  