October 21, 1916 



HOETICULTURE 



543 



FALSE REPRESENTATION 



Never Bring a False Representation 

 Case Without Fullest Investi- 

 gation. 



About six months ago a retail dealer 

 doing business about seven miles from tliis 

 city, opened an account witli us. He came 

 fairly well recommended and madt' a tiuan- 

 clal statement which our credit man 

 thought warranted a line of several hun- 

 dred dollars. We continued to sell him 

 on regular terms, and he paid promptly, 

 until about two weeks ago, wheu we heard 

 rumors that he was a snide and was get- 

 ting ready to tail. We investigated this, 

 and found information w-hich indicated that 

 it was true. We then investigated a little 

 further and apparently found that some 

 real estate which the customer had given 

 in his statement as a part of his assets, 

 was really in his wife's name and was not 

 liable, so our attorney advised us. for his 

 debts. Being told this, and in order to 

 forestall what we believe was our coming 

 loss by reason of his failure, we had the 

 man arrested for obtaining credit under 

 false pretences regarding tlie ownership of 

 real estate, hoping that this might at least 

 get us a settlement of our account. He 

 was held in bail for court, and the case 

 is still not disposed of, but we have 

 learned that we were in error about the 

 false representation. The real estate In 

 question was in his name at the time he 

 set it forth in his statement and is in his 

 wife's name now, but only because his wife 

 exchanged some other real estate for it. 

 This customer was worth what he said 

 he was, and it therefore looks as if we were 

 wrong in having him arrested. What 

 course can he take against us? We hear 

 tljat he intends to do something. 



I withhold both the name and ad- 

 dress of the writer of this, because 

 otherwise I should not like to answer 

 it publicily. I want to answer it pub- 

 licly because it touches a subject of 

 general interest and of much im- 

 portance. 



The very day I received this letter, 

 a Philadelphia court gave to one Isaac 

 Gross, a general storekeeper, a ver- 

 dict of $3,075 against a Philadelphia 

 wholesale house — Lichtenstein Bros. 

 & Sons. The facts were similar to 

 those set forth in the above letter. The 

 jobbing house accused Gross of obtain- 

 ing goods from them under false 

 statements as to his financial responsi- 

 bility. He denied it, and they had him 

 arrested. He was tried and acquitted, 

 and at once brought suit for damages 

 for malicious prosecution. The ver- 

 dict of $3,075 is the result. 



There is no doubt that in the case 

 cited in the above letter the customer 

 can bring suit against my correspon- 

 dent for malicious prosecution. Wheth- 

 er he will win it is of course a differ- 

 ent thing, but he has all the elements 

 to work with. He was accusea and 

 arrested for a criminal offense, there- 

 by being put to expense and shame. 

 When tried he will doubtless be ac- 

 quitted, as there will be no evidence 

 against him. I am free to say that if 

 I were his counsel I should advise 

 him that the next step should be the 

 bringing of a suit for malicious pros- 

 ecution. 



It is a malicious prosecution when 

 A brings a criminal action — in most 

 States a civil action also — against B, 

 upon insufficient grounds. It can be 

 knowingly done, it can be recklessly 



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 Yours truly, 



(Signed) THOMAS DUKE. 

 R. F. D. 1, Troy, New York, .July 15. 1916. 



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ARTHUR T. BODDINGTON CO., Inc. 



11128 Chambers Street, New York 



done, or it can be carelessly done. 

 Even if the prosecutor thought his 

 ground was good, he is held responsi- 

 ble if it proves to be bad, if he could 

 have found it was bad had he looked 

 the matter up before acting. Nobody 

 is expected to issue a warrant for an- 

 other person's arrest unless he knows 

 precisely what he is doing. 



It will therefore not be enough for 

 this correspondent to say "I acted in 

 good faith, believing I was right." He 

 must further say, "I investigated and 

 had every reason to believe 1 was 

 right." 



That means what the law calls 

 "probable cause." If the prosecutor 

 who is afterward sued for malicious 

 prosecution had probable cause for 

 what he did. he is not liable in dam- 

 ages, because then the law says the 

 act was not malicious. What is prob- 

 able cause? Any state of facts which 

 after careful investigation would con- 

 vince the average man that the per- 

 son whose arrest he was contemplat- 

 ing was guilty. In other words, if the 

 above correspondent carefully investi- 

 gated all reasonable sources of knowl- 

 edge, and everything he found pointed 

 to his customer's guilt, then he had 

 probable cause. But if he only partial- 

 ly investigated — in other words, if he 

 was careless, if he jumped at conclu- 

 sions, the jury would almost certainly 

 hold that he had no probable cause 

 and mulct him in damages. 



Before having a customer arrested, 

 or anybody else, tor that matter, al- 

 ways consult a lawyer. Always. The 

 fact that you acted on an attorney's 

 advice is always considered evidence 



in your favor, as showing probable 

 cause and absence of malice. 



Every man who obtains money or 

 goods, or anything whatever, under 

 false representations, should be arrest- 

 ed as an example to others. More- 

 over, it is usually the quickest way to 

 induce him to undo the wrong tie has 

 done. But never do it until you have 

 carefully looked up every fact which 

 could bear upon his guilt. In the case 

 submitted by the above correspondent, 

 I should have taken my warrant, and 

 an officer to serve it, to the customer 

 and confronted him with the evidence 

 I had against him. It he had any ex- 

 planation. I should investigate it be- 

 fore 'serving the warrant. If he gave 

 none, the case against him would be 

 very much strengthened, and I should 

 serve the warrant then and there. Ap- 

 parently this course would have pre- 

 vented the above situation. 



(Copyright, October, 1!)16, by Elton 

 J. Buckley.) 



SEED TRADE NOTES. 



Wethersfield, Ct.— Hart, Welles & 

 Co., seedsmen, have dissolved partner- 

 ship, Mr. Welles retiring from the 

 business. The firm name has been 

 changed to the Chas. C. Hart Seed Co. 



The many friends of Fred Peterson, 

 now connected with .1. F. Noll & Co., 

 of Newark, N. J., will be pleased to 

 learn that he is convalescing satisfac- 

 torily from his recent operation for 

 apiiendicitis. He has not yet been 

 able to return to business, probably 

 will not be for some weeks, but he is 

 on the mend. 



