59 Mass. 221 - Thaxter v. Bugbee — 59 Mass. 221

Samuel Thaxter & another vs. Samuel C. Bugbee. A representation as to the credit of an individual being expressed in the following terms : — “ The bearer, D. D. M., is in want of some lumber to finish up a house at Canton. He is a responsible man and will pay you according to agreement or I will accept his order for any amount not exceeding S500, in 30 days.” It . was held, that the representation contained two clauses, in the alternative, upon either of which the plaintiffs might rely; and that the extent of the first clause was, that D. D. M. was a responsible man, and would pay according to agreement, to the amount of the lumber sufficient to finish the house at Canton. This was an action on the case against the defendant, for falsely and fraudulently representing one Morrison to be a responsible person, who would pay according to agreement; in consequence and by means of which, the plaintiff had sold and delivered to Morrison goods on credit, for which he had not paid. At the trial, before Bigelow, J., in the court of common pleas, the plaintiff gave in evidence a paper addressed to him in the form of a letter, dated February 11th, 1847, and signed by the defendant, of which the following is a copy : — “ The bearer, D. D. Morrison, is in want of some lumber to finish up a house at Canton. He is a responsible man, and will pay you according to agreement, or I will accept his order for any amount not exceeding $500, in thirty days, as I have to pay him $1400 or $1500 in a few days.” It was also in evidence, that at the date aforesaid, the defendant was the architect of a house then building at Canton, of which Morrison was the builder; that lumber of the value of $150 was sufficient to finish the house; that the plaintiff sold and delivered Morrison lumber therefor, on the representation in the defendant’s letter, to the amount of $144.66, for which he had been paid; that afterwards, between the 26th of July and the 16th of October, 1847, the plaintiffs sold Morrison on credit lumber for another house at Medford, and also coals, amounting in the whole to $189.29; of which sum $60.34 had been paid by Morrison, leaving a balance due the plaintiffs of $128.95, the amount demanded in this action; and that this was the balance due the plaintiffs, charging the whole amount and crediting all sums paid. The plaintiffs contended, on this evidence, that the letter ol the defendant contained two separate and distinct representations, namely : 1st, That on the 11th of February, 1847, Morrison was then a responsible man; 2d, That the defendant would accept an order from him for $500, within thirty days. They claimed also a right to avail themselves of either of these representations; and they accordingly relied on the first. The presiding judge instructed the jury, that the letter or representation, relied on by the plaintiff, contained two clauses, in the alternative; and as the plaintiffs relied on the first, (which they had a right to do,) it was only necessary to give that clause its proper construction, which was, that the defendant represented Morrison to be a responsible man, and that he would pay, according to agreement, for lumber sufficient to finish the house at Canton, which, according to the testimony, was about one hundred and fifty dollars; that if the amount of lumber sufficient to finish the house at Canton was delivered and had been paid for; and, subsequently, after the house at Canton had been finished, for two or three months or more, the plaintiffs chose to give Morrison credit for lumber for other purposes, and had not received their pay, they could not recover therefor of the defendant; that in order to maintain this action, they must be satisfied, that the representation made by the defendant was untrue, at the time it was made, and that the defendant knew it to be untrue ; and, if on the evidence they were satisfied, that the defendant gave an honest opinion, and truly believed the representation made by him, that then he would not be liable. The jury returned a verdict for the defendant, and on being inquired of by the judge, stated, that they found that Morrison, at the time of the representation, was a responsible man for lumber sufficient to finish the house at Canton. The plaintiffs alleged exceptions. The case was submitted without argument. — By the Court. (majority) By the Court. The instructions given in the court below were correct; the exceptions are therefore overruled, and judgment must be rendered on the verdW