41 Conn. 142 | Conn. | 1874
The objection taken to the sufficiency of the first count is founded upon the idea that trover will lie only for property that is tangible and that will admit of being taken into actual possession. This claim is undoubtedly supported by the older authorities. A majority of the court however are of opinion that at the present time, when the action of trover is diverted from its original object of recovering the value of goods lost by the plaintiff and found by the defendant, and all the allegations with respect to such loss and finding are merely fonnal and unmeaning, there is
Again, all the elementary books declare that trover lies to recover the value of goods and personal chattels whenever they have been unlawfully converted. Now it was liolden in the case of North v. Forest, 15 Conn., 400, that shares of stock were goods, wares and merchandise, within the provisions of the statute of frauds, which declares “ that no contract for the sale of any goods, wares and mex-chaixdise,
The court in the case referred to show a disposition to treat shares of stock like other kinds of personal property; ánd certainly, if they are treated as goods, wares and merchandise, in order that fraud may be prevented, they should be treated as goods, wares and merchandise that wrong may be redressed. The doctrine of this case is sustained by the court in Massachusetts in the case of Tisdale v. Harris, 20 Pick., 9, and by recent cases in England. 3 Stark. Ev., 352.
But there are cases bearing directly upon this question. Maryland Fire Ins. Co. v. Dalrymple, 25 Maryl., 242; Cousland v. Davis, 4 Bosworth, 619; Freeman v. Harwood, 49 Maine, 195; Monk v. Graham, 8 Modern R., 9. These are all cases where stock had been given in pledge as collateral security, and the action of trover was sustained for the conversion of the same, without any suggestion being made to the contrary by court or counsel.
A majority of the court are of the opinion that the first count is sufficient.
In relation to the second count, we are all of the opinion that it is sufficient. The ground of complaint set forth in this count is the conversion of the property by the defendant. The remaining allegations contain merely a statement of the means employed by the defendant to obtain possession of the
But the defendant claims that nothing appears in this count but a breach of contract. Ho insists that to constitute fraud a party must make a false statement as to some material existing fact, knowing it to be false. This is not necessary in all cases of fraud. If a vendor intentionally conceals from the vendee a material latent defect in a horse which he is selling, and the sale is made; or if he should say that the horse was sound so far as he knew, when he knew him to be unsound, and the unsoundness consisted in a latent defect which impaired his value, he would be guilty of fraud. 1 Swift’s Digest, ■ 554. So if a man purchases goods with a preconceived design not to pay for them, he is likewise guilty of fraud. Reid v. Hutchinson, 3 Camp., 352; Noble v. Adams, 7 Taunt., 89; Bristol v. Wilsmore, 1 Barn. & Cress., 514; Killey v. Wilson, Ryan & Moody, 178; Hawse v. Crowe, id., 414; Ferguson v. Carrington, 9 Barn. & Cress.,
It is alleged in this count that the defendant, in order to induce the plaintiff to give up his claim against the corporation and take stock in lieu thereof, informed the plaintiff that he would indorse his paper without further compensation and without security, intending at the same time not to do it, but to demand security when the time should come, in order to compel the plaintiff to put his stock into his hands; and intending further, when this should be done, to appropriate the stock to his own use. It is alleged that the defendant was successful in his scheme of depriving the plaintiff of his property and in converting the same. The contract is not set out as the basis of recovery, but as the means whereby the defendant accomplished his original purpose to convert» the property. It is the dishonesty in making the false promises in furtherance of his scheme of fraud, that is the basis of the action, in connection with the conversion of the property. The scheme had several progressive steps in the order of its accomplishment. First, the plaintiff was to be deprived of the means to meet his engagements. This was accomplished by the defendant pretending that if the plaintiff would give up his claim against the corporation and take stock in lieu thereof, he would indorse his paper to meet his engage, ments, without further compensation and without security. Secondly, the plaintiff was to be compelled to put his stock into the defendant’s hands. This was accomplished by the refusal of the defendant to indorse the plaintiff’s paper as he had agreed without security, and by his persuading him that the stock would be returned by the defendant when he should be saved harmless from his indorsements. Thirdly, the final consummation of the scheme, which was accomplished by the conversion of the property after the obligations were paid on which the indorsements were made. It would seem that if a man is guilty of fraud in the purchase of goods when he has a secret intention not to pay for them, much more is he guilty of fraud if, after he devises a scheme for getting possession of the property of another without
Yery little need be said in relation to the third count in this declaration, for, as we view it, a similar count has been sustained by this court in the recent case of Stevens v. Hurlburt Bank, 31 Conn., 147. All the difference in the two cases seems to be that in the case referred to the stock was pledged as collateral security, and here a transfer of it was obtained for a fraudulent purpose. But the property in reality belonged to the plaintiff, and when the object was accomplished for which it was transferred the plaintiff was entitled to its immediate return. It was his then absolutely, and the conversion of it by the defendant was as great a wrong as it would have been if the property had been pledged. But nothing further need be said of this distinction, as the defendant makes no point of it in his brief.
The gist of the action in this count, like the others, is the selling and disposing of the property belonging to the plaintiff, after the purpose for which it was placed in the defendant’s hands had been accomplished. The statement
We therefore advise the Superior Court that all three of the counts in this declaration are sufficient.
In this opinion Carpenter and Phelps, Js., concurred. Foster, J., dissented upon the first point, but concurred upon the others. Pardee, J., did not sit.