large amounts from Miller in payment of the merchandise sold by Boyd to him, was evidence of fraud and deceit. The soundness of this opinion is fully shown by the authorities, and particularly by Corbit v. Brown, 8 Bing. 33; Allen v. Addington, 7 Wend. 9, and Ward v. Centre, 3 Johns. Rep. 271. It is scarcely necessary to add that in the case at bar there was abundant evidence, if believed, to establish the fact that Boyd took more than ordinary pains to inculcate a falsehood, which he must have known was untrue, for the purpose of inducing plaintiffs to credit Miller.

STATEMENTS TO A CLASS OF PERSONS.
EATON, COLE & B. Co. v. AVERY.

(83 N. Y. 31.-1880.)

John H. Bergen for appellant.

John L. Hill for respondent.

RAPALLO, J. This is an action for deceit in obtaining the sale and delivery of goods to the firm of Avery & Riggins, by means of false representations made by the defendant as to the pecuniary condition of his firm. The representations charged were not made directly by the defendant to the plaintiff, but are alleged to have been made by him to a mercantile agency (Dun, Barlow & Co.), or its agent, and by it communicated to the plaintiff, who claims that it delivered the goods to Avery & Riggins on credit, on the faith of such representations. The counsel for the defendant contends that the plaintiff cannot maintain an action against the defendant for false representations made by him to Dun, Barlow & Co., or its agent, and that such representations, assuming them to have been made, are not sufficiently connected with the dealing between the defendant and the plaintiff to enable the latter to recover by reason thereof. On this point we are of opinion. that the law was correctly stated by the learned judge before

whom the trial was had, in his charge to the jury, wherein he instructed them that if the defendant, when he was called) upon by the agent of Dun, Barlow & Co., made the statements alleged in the complaint as to the capital of the firm of Avery & Riggins, and they were false, and so known to be by the defendant, and were made with the intent that they should be communicated to and believed by persons interested in ascertaining the pecuniary responsibility of the firm, and with intent to procure credit and defraud such persons thereby, and such statements were communicated to the plaintiff and relied upon by it, and the alleged sale was procured thereby, the plaintiff was entitled to recover. The rule thus laid down accords with the principle of adjudications in analogous cases, in which it has been held that it is not essential that a representation should be addressed directly to the party who seeks a remedy for having been deceived and defrauded by means thereof. (Cazeaux v. Mali, 25 Barb. 578; Newbery v. Garland, 31 id. 121; Broff v. Mali, 36 N. Y. 200; Morgan v. Skiddy, 62 id. 319; Commonwealth v. Call, 21 Pick. 515, 523; Commonwealth v. Harley, 7 Metc. 462.) The principle of these cases is peculiarly applicable to the case of statements made to mercantile agencies. Proof was given on the trial as to the business and office of these agencies, but they are so well known, and have been so often the subject of discussion in adjudicated cases, that the courts can take judicial notice of them. Their business is to collect information as to the circumstances, standing and pecuniary ability of merchants and dealers throughout the country, and keep accounts thereof, so that the subscribers of the agency, when applied to by a customer to sell goods to him on credit, may, by resorting to the agency or to the lists which it publishes, ascertain the standing and responsibility of the customer to whom it is proposed to extend credit. A person furnishing information to such an agency in relation to his own circumstances, means and pecuniary responsibility, can have no other motive in so doing than to enable the agency to communicate such information to persons who may be interested in obtaining it, for their guidance in giving credit to the party; and if a merchant furnishes to such an agency a

wilfully false statement of his circumstances or pecuniary ability, with intent to obtain a standing and credit to which he knows that he is not justly entitled, and thus to defraud whoever may resort to the agency, and in reliance upon the false information there lodged, extend a credit to him, there is no reason why his liability to any party defrauded by those means should not be the same as if he had made the false representation directly to the party injured.

The counsel for the appellant is undoubtedly right in his general proposition that a false representation made to one person cannot give a right of action to another to whom it may be communicated, and who acts in reliance upon its truth. If A casually or from vanity makes a false or exaggerated statement of his pecuniary means to B, or even if he does so with intent to deceive and defraud B, and B communicates the statement to C, who acts upon it, A cannot be held as for a false representation to C. But if A makes the statement to B for the purpose of being communicated to C, or intending that it shall reach and influence him, he can be so held. In Commonwealth v. Call, 21 Pick. 515, the court say on this point, at page 523, that the representation was intended to reach P and operate upon his mind; that it did reach him, and produced the desired effect upon him, and that it was immaterial whether it passed through a direct or circuitous channel.

In Commonwealth v. Harley, 7 Metc. 462, the prisoner was indicted for obtaining goods by false pretences from G. B. & Co. The representations were made by one Cameron, in the absence of the prisoner Harley, to a clerk of G. B. & Co., who communicated them to a member of the firm. But there was evidence that they were made by Cameron with the approbation and direction of Harley, and these facts were held sufficient to sustain a conviction. Neither is it necessary that there should be an intent to defraud any particular person. Should A make a false statement of his affairs to B and then publicly hold out B as his reference, can it be doubted that he would be bound by the communication of his statement by B to any person who might inquire of him in consequence of this reference? That case differs from the present one only

in the fact that here there was no express invitation to the public to call upon Dun, Barlow & Co. for information. But the defendant knew that they were a mercantile agency whose business it was to give information as to the standing and means of dealers, and that it was resorted to by merchants to obtain such information. By making a statement of the financial condition of his firm to such an agency he virtually instructed it what to say if inquired of. Can it make any difference whether he spontaneously went to the agency to furnish the information, or whether he gave it on application? He must have known that the object of the inquiry was not to satisfy mere curiosity, but to enable the agency to give information upon which persons applying for it might act, in dealing with the defendant's firm. The case is a new one in its facts, but the principles by which it should be governed are well established.

GRAY, J. Neither of the grounds assigned by the learned judge who presided at the trial, for the ruling, under which a verdict was returned for the defendant in each of these cases, is tenable.

1. The evidence introduced tended to show that the defendant falsely and fraudulently stated, as of his own knowledge and not as a matter of opinion, in the one case, that he had the interest in the patent right which he undertook to sell, and in the other, that the invention was not covered by any other patent. A distinct statement of such a fact by a seller, knowing it to be false, and with the intent to deceive

the buyer, and on which the buyer acts to his own injury, will sustain an action of deceit, even if the buyer might have discovered the fraud by searching the records of the patent office. (Brown v. Castles, 11 Cush. 348; Manning v. Albee, 11 Allen, 520; S. C. 14 Allen, 7; Watson v. Atwood, 25 Conn. 313.)

ON rule to show cause why a new trial should not be granted.

But even if we were to assume that this stock was in reality the property of McKay, and that Halliard and Reid were his agents to make sale of it, still it is not apparent upon what legal theory this present action could be sustained. To support this suit against McKay fraud must be imputable to him, and the case is entirely destitute of all testimony tending to show that he authorized, or was privy to the utterance of the false representations in question. On the ground thus assumed, then, the case would be that of a sale made by fraud-doing agents in behalf of an innocent vendor. Whatever uncertainty may at one time have prevailed in regard to the legal incidents of such a position, such uncertainty no longer exists, and the rights under the given circumstances of both vendor and vendee have been plainly defined, and, as I

1 Albany Savings Bank v. Burdick, 87 N. Y. 40; Schwenk v. Naylor, 102 N. Y. 683; Thorne v. Prentiss, 83 Ill. 99.