Gallipolis Furniture Co. v. Symmes

The action below was in replevin, being submitted to the jury on-the petitiou and evidence of the plaintiff, without any answer or evi*515dence 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 $600 for goods in transit, and $900 on a mortgage on his residence, and that the residence was worth $2,600, whereas, in fact, he was owing his wife, and had been for thirteen years, the sum 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 excuse. ' •

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 cannot be considered, this case having been commenced prior to the amendment of sec. 5298, Rev. Stat., 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 defendants.

Judgment reversed and cause remanded.