Van Sciver Co. v. McPherson
Van Sciver Co. v. McPherson
Opinion of the Court
Opinion by
This was an action of replevin brought by the plaintiff to recover from the defendant certain furniture and upholstery goods. The property was delivered by the sheriff to the plaintiff.
These goods were sold by the plaintiff to the defendant, but she failed to pay for them. When the plaintiff’s collector presented the bill for payment, the defendant told him she had nothing and that her estate had been squandered. This action was then brought to recover the goods, on the ground that they were obtained from the plaintiff by fraud. In support of the allegations of fraud, the plaintiff claimed and produced testimony to show that at the time the defendant purchased the goods, she represented that the estate of her deceased husband was large, and that she had ample means of her own to pay any liabilities she might incur. It is claimed by the plaintiff that both representations were false and were known to be so by the defendant at the time she contracted for the goods. To aid her in committing the fraud, it is alleged by the plaintiff that the defendant referred the company to one George E. Payne as to her solvency, and that, at her instance, Payne addressed the plaintiff a letter, which was in evidence, to the effect that she was responsible for the price of the goods sold her. The defendant denied that she procured the goods under these or any other false representations. This was the issue submitted for the determination of the jury.
The first assignment alleges error in sustaining the defendant’s objection to a question addressed to George E. Payne. He was called as a witness by the plaintiff and testified that he had written the letter referred to above at the request of the defendant in his office and when she was present. The
The second assignment of error must also be sustained. The defendant being on the witness stand and having testified in chief that she had 11,000 of her own means and had deposited it in the bank before the purchase of the furniture, the plaintiff’s counsel asked her on cross-examination: “Before the purchase of the furniture, and from whom did you receive the |1,000?” The court sustained an objection to the question. One of the representations alleged to be false was that at the time the defendant purchased the furniture, she had means of her own to meet the liabilities she might incur. Her testimony to establish the truth of the representation and to rebut the allegation that it was false, was offered and tended to show that she had the HI,000. It was, therefore, permissible to ask her from whom she received the money and to cross-examine her fully in regard to the matter. It was concerning a matter about which she had been interrogated in chief and bore directly upon the issue between the parties.
The remaining assignments need not be considered. The matters therein alleged as error will not occur on another trial.
The first and second assignments of error are sustained, and judgment is reversed and a venire facias de novo is awarded.
Reference
- Full Case Name
- Van Sciver Company v. McPherson
- Cited By
- 7 cases
- Status
- Published
- Syllabus
- Replevin—Fraud—Rescission of contract of sale. In an action of replevin to recover goods alleged to have been sold by plaintiff to defendant in reliance upon fraudulent representations and upon a letter written by a third person to the plaintiff at the instance of the defendant, the writer of the letter when called as a witness for plaintiff may be asked what occurred between him and the defendant at the time the letter was written. In the investigation of fraud great latitude is permitted in the admission of evidence. Where a purchaser of goods represents to the seller at the time of the sale that she had means amply sufficient to pay for the goods, and subsequently in an action of replevin by the seller to recover the goods, she testifies that she had a stated sum of her own means, and had deposited it in a bank before the purchase of the goods, she may on cross-examination be asked from whom she received the money. Appeals—Paper-book—Statement of question involved—Buie 26. A statement of the question involved which contains twenty-nine lines and occupies nearly an entire page is in violation of Rule 26 of the Supreme Court. Violations of this rule will result in the suppression of paper-books and the nonprossing of appeals.