PHELPS v. MAXWELL

PHELPS v. MAXWELL. N. Y. Supreme Court, First Department; Chambers, September, 1877. Affidavit fob Abbest.—Evidence.—False Bepbesentations.— Pbactice. An affidavit to obtain an order of arrest for false representations, on the ground that the defendant had-given a written representation of solvency, &c., several months prior to the sale of goods, made in reliance upon the truth of such representations, should show facts connecting the sales with the declaration. Such an affidavit, alleging oral statements to the plaintiff, should by a recital of the interview during which they were made, connect them with the actual sales. A general statement of a party that they were made to induce credit is not enough. Motion to vacate an order of arrest. This action was brought by George A. Phelps and others against Frederick Maxwell, to recover the sum of $3,660.75, for a quantity of fruit sold by the former to the latter. An order to arrest the defendant was obtained on an affidavit of one of the plaintiffs, which alleged that in June, 1877, the plaintiffs, relying on the statements and representations of the defendant, in regard to his solvency and property, sold him a quantity of fruit, for which he gave them his promissory notes payable in sixty days ; that about a month afterwards they sold him some more fruit, which had never been paid for ; “ that to induce the plaintiffs to sell and deliver to defendant such fruit, defendant made and left with Brown and Secomb, plaintiff’s auctioneers, through whom said last sale was made, a written statement signed by him, the defendant, stating that he had a capital of $14,000, over all liabilities, employed in his business, and that he had assets to the amount of $55,700, and he also in a personal interview with deponent just prior to such sales in June, represented and stated to deponent, to induce him to make such sales, that he was ‘ all right,’ and that he was solvent and able to pay ; that on July 30, 1877, the defendant, made a general assignment for the benefit of creditors, and in his schedules stated his liabilities at about $68,000, and his assets at about $19,000; that the defendant had not suffered any loss in his business to any considerable extent, from the time of the aforesaid sales, to the time of his making a general assignment, so far as the deponent could ascertain after diligent inquiry.” Defendant moved to vacate the order of arrest on his own affidavit, in which, after denying in many particulars the statements in the original affidavit, he alleged that the written statement referred to therein was made to said Brown and Seccomb, in November, 1876, and was at that time in all respects true; and that he had no recollection of any interview, such as referred to therein, for the purpose of inducing them to give him credit. William B. Hornblower (Chamberlain, Carter & Eaton, attorneys), for motion. Thomas Stevenson (A. J. Heath, attorney), opposed. [MAJORITY — Westbrook, J.,] Westbrook, J., Vacated the order for the following, among other reasons : 1. The written declaration was so long prior to the sales that facts connecting it with the sales should be shown. 2. The oral statements to the plaintiff should, by a recital of the interview during which they were made, be connected with the actual sales: a general statement of a party that they were made to induce a credit cannot be accepted as proof. A party’s conclusions are no evidence ; he should state facts, so that the court can draw the conclusions.