Standard Horseshoe Co. v. O'Brien

At the trial the plaintiff’s fifth prayer, which was granted,asked the Court to rule that “ If the Court sitting as a jury shall find from the evidence that when the defendant O’Brien bought from the plaintiff the goods replevied in this case (if it shall so find) or similar goods greater in amount than those replevied, he said O’Brien was insolvent, and knew that he was insolvent and had no reasonable expectation of paying for the goods purchased then the verdict of the Court so sitting must be for the plaintiff, even though the Court may find that the goods so bought as aforesaid were so intermingled by the defendant O’Brien with other goods of the same kind bought by said O’Brien from the plaintiff and others as to be indistinguishable therefrom.” The defendant’s first prayer, which was granted, asked that if the Court found that at the time of the purchases of the horseshoes in controversy, O’Brien honestly intended to pay for the same in accordance with his contract with the plaintiff and believed, in the bona fide exercise of his judgment that he had a reasonable expectation of being able to do so and further finds that said sales were not induced by any fraudulent misrepresentation, concealment or deceit on the part of said O’Brien, then the plaintiff is not entitled to recover. A former appeal in this case is reported in 88 Md. 337 , ⁷⁵² where the facts are stated in the opinion of the Court, which remanded the case for a new trial. The Court said : All the evidence taken at the first trial was again offered, and is now before the Court. New evidence was also taken, and it is claimed that this so changes the character of the points presented as to require a reversal of the judgment last rendered.

After a careful examination of all the evidence we cannot perceive that a legally different case is now made out than was determined in the former appeal. In the first appeal, the appellant claimed to rescind the contract, solely upon the ground that the horseshoes had been fraudulently purchased by the defendant. This contention was based, ist, upon O’Brien’s representations to Cook, the agent of the appellant, and 2nd, that at the time of the purchase of the articles which were the subject of the suit, O’Brien was insolvent, knew himself to be so, and had no reasonable expectation of paying for the goods purchased. This Court held that according to the testimony then before the Court “ the statement ” made by O’Brien to Cook was strictly true, also that if the purchase for the articles then in dispute was made by O’Brien when he “ was insolvent and knew he was insolvent ” and had no reasonable expectation of paying for the goods purchased, he committed a fraud which authorized the plaintiff to rescind the contract of sale.

What O’Brien told Cook, which, it is said, induced the appellant to give him credit, it appears in the opinion of the Court in the former case that he, O’Brien, had a cash capital of $2,000, which had been contributed by Amos, and that Amos was backing him and was to have a share in the profits. In his additional statement he now says, that O’Brien told him “in so many words that Amos was his partner.” If that was untrue, and was told by O'Brien with intent to deceive, and did actually deceive the appellant, then