Gent v. Ensor

Bartol, C. J., delivered the opinion of the Court. This suit was brought by the appellant, upon a promissory note drawn in his favor by the appellee, dated Aug. 19th, 1812, for four hundred dollars payable six months after date. Besides the count on the note, the declaration contains the usual money copnts, and a count for goods bargained and sold. The defence relied on by the appellee is a want,1 or failure of consideration, and that the note was obtained by fraud, deceit and misrepresentation practiced upon him by the appellant. .

It appears that in 1811 the appellant, a farmer in Baltimore County, had a lease for five years of a house and premises at No. 62 Mulberry street, which was occupied by Stephen S. Gaule. The appellant also owned certain personal property consisting of two horses, two wagons and harness, with cans, measures, ice-box, and fixtures in the house necessary for carrying on the business of supplying milk to customers in the city. At first Gaule was agent of the appellant, and sold milk which the latter sent him, for wages. Afterwards an arrangement was made between them, by which Gaule agreed to pay for ³³ the milk supplied him by the appellant, which he sold, to customers in the city, using for that purpose the horses, wagons and other personal property of the appellant, for which Gaule agreed to pay to the appellant interest on the cost of the same.

This was the relation between Gaule and the appellant in August, 1872, when on the 19th day of that month a contract was made between the appellant and appellee, whereby the latter agreed to purchase the horses, wagons and other personal property used in the business; and also the residue of the tei-m of five years in the premises at ISTo. 62 Mulberry street, for the sum of $1400, of which $600 was paid in cash and two notes of $400 each were given for the residue, one payable in six and one in twelve months, the first of which is the cause of action in this case. The personal property was in Gaule’s possession, but the appellant had a bill of sale of it. To carry out the contract with the appellee, “ the bill of sale held by the appellant was released to Gaule,” by which we understand tlie personal property was conveyed by the appellant to Gaule; and the latter executed a bill of sale to the appellee conveying to him tlie personal property. This instrument was dated Aug. 19th, 1872, and was regularly acknowledged and recorded.

On the same day, a sub-lease of the premises on Mulberry street, was made by the appellant to the appellee for the residue of the term of five years. Thus far the facts are undisputed, but here arises a conflict in the testimony. According to the evidence of the appellant, the sale included also a transfer of a debt whicli Gaule owed him, amounting to $500 or upwards, and it was understood that the appellee, was to assume towards Gaule the same relation, which the appellant had; and get the benefit of the same preference in supplying milk, ³⁴ to be sold to the same customers, upon what appears to be known in the trade as “the milk route.” The appellee testified that the contract of purchase embraced the debts due from customers to whom milk had been furnished, charged on the books, which the -appellant represented to be good, and as amounting to $800, and further represented that he would have them collected by the 16th of October, 1872; and also testified that the appellant represented that he was the owner of the “milk route” in the city, and that the same was estimated in the purchase, and formed a part of the consideration which the appellee agreed to pay. And-he further testified that these representations were false, that no debts were due to the appellant from the customers, and that the right to the milk route was not in the appellant, but was claimed by Graule and his family.

On the other hand the appellant testified, that he did not represent that any money was due him from the customers, or charged on the books. That the appellee well knew the nature of the business, and of his relation with G-aule. That his dealings were not with the customers in the city directly ; but with Graule, who purchased the milk from him, and was alone responsible to him for the same ; and what he agreed. to sell was the debt due him by Graule; which according to Graule’s testimony was $790, and further that he made no misrepresentations with respect to the “milk route.” That his business connection with Graule being well known to the appellee, the understanding was that the latter was to take his place in the business with the benefit of the good will attached to the premises No. 62 Mulberry street, and the benefit of the preference in supplying milk, under the arrangement with Gaule. We give the testimony of these witnesses, substantially without repeating their words.

To decide upon this conflicting testimony, 'was properly within the province of the jury; and we have no remark to make upon it. ³⁵ Another conflict in the testimony of the parties, is found in their statements as to the time when the contract was to take effect, and the possession he delivered. The appellee testified that it was to take effect on the 16th day of October, 1872 ; while the appellant stated in his evidence that it was to go into effect immediately. This question of fact 'was material for the jury to determine, in considering the effect of the conduct of the parties after the contract was made. It clearly appears by the proof, that after that time, the appellee went on to supply milk to Gtaule, who continued in possession of the house, and the personal property; and that the appellant from that time ceased all connection with the business.

About the 13th or