39 Kan. 679 | Kan. | 1888
The opinion of the court was delivered by
On September 4, 1884, two actions of replevin were commenced in the district court of Lyon county against C. M. Henderson & Co. for the recovery of certain goods, wares and merchandise, consisting principally of boots and shoes. One of such actions was commenced by Gibbs & Allen, and the other by Creamer Bros. The two actions involved substantially the same questions, and, with the consent of all the parties and the court, were tried together before the court without a jury; and the court in each case found generally in favor of the plaintiffs and against the defendants, and rendered judgment for a return of the property to the plaintiffs, respectively; or, in case a return could not be had, then in favor of the plaintiffs, Gibbs & Allen, and against C. M. Henderson & Co., for the sum of $457.98, and costs; and in favor of the plaintiffs, Creamer Bros., and against C. M. Henderson & Co., for the sum of $192.90, and costs. These judgments were rendered on January 17,1887; and to reverse the same, C. M. Henderson & Co., as plaintiffs in error, have
The plaintiffs in error, defendants below, claim that the court below erred in the admission of evidence, and also in its general finding on the evidence. The facts of the case, stated briefly, are substantially as follows: Prior to April, 1882, Frank J. Do an was in the employment of C. M. Henderson & Co., plaintiffs in error, defendants below, who were then and still are wholesale dealers in boots and shoes in Chicago, 111. In April, 1882, Doan and one Quetch commenced business on their own account as retail dealers in boots and shoes in Emporia, Kansas, under the firm-name of Quetch & Doan, C. M. Henderson & Co. furnishing all the capital. Quetch & Doan continued in business until September, 1883, when Quetch retired, leaving Doan alone to continue the business. On April 27, 1884, Doan purchased a lot of boots and shoes from Gibbs & Allen, defendants in error, plaintiffs below, who were then and still are manufacturers of boots and shoes at Grafton, Mass. These are a part of the goods now in controversy. On May 13, 1884, Doan purchased a lot of boots and shoes from Creamer Brothers, defendants in error, plaintiffs below, who were then and still are wholesale dealers in boots and shoes at Boston, Mass. These are the remainder of the goods in controversy. The principal questions litigated in the court below were whether these purchases by Doan from Gibbs & Allen and from Creamer Brothers were fraudulent or not on the part of Doan. The court below found in the affirmative. At the time of these purchases Doan was owing to C. M. Henderson & Co. about $9,000, and also owed several other persons, while his entire stock of goods, furniture and fixtures and all that he owned were not worth that amount. Yet upon inquiry concerning his financial condition by the agents respectively of Gibbs & Allen and Creamer Brothers, he not only failed to disclose his unsound financial condition to them, but in effect stated to them that his financial condition was good. He stated to the agent of Creamer
Upon the negative of the question, see the following cases: Shufeldt v. Pease, 16 Wis. 659; Butters v. Haughwout, 42 Ill. 18. See also the following case, as tending to support the negative: Lee v. Kimball, 45 Me. 172.
We think it is true with regard to any negotiable instrument, that if it is transferred by the holder thereof, in a proper manner, before due, to an innocent purchaser, for value, the instrument will be taken by the innocent purchaser freed from all infirmities, whatever fraud may have intervened in the procuring of the instrument from the original maker or drawer, or from any prior owner thereof, and whatever may have been
On the part of the plaintiffs below, defendants in error, it is claimed that when a sale of personal property is procured by the fraud of the vendee, no title to the property passes and the sale is absolutely void. Now while this case must be decided in favor of the plaintiffs below, defendants in error, and the same, as though this claim of theirs were true, yet we do not wish to place our decision upon any such doctrine. We do nqt think that it is sound. In our opinion when a sale of personal property is procured by the fraud of the vendee, the title to the property passes to the vendee subject only to the right of the vendor to rescind the contract and to retake the property, provided also that he places or leaves the vendee in statu quo. Many authorities may be found which
“ The tendency of the modern cases is to adopt a view based on a closer analysis of the fraudulent vendee’s title, and which may have been suggested by the instance óf a prima fade title afforded by markets overt, or by the inclination to treat the contracts of infants as voidable and not void; but it seems to have been more immediately derived from the analogy of real property, where a like distinction was maintained.
“The title of the fraudulent vendee had been assumed to be utterly void; but this view of the contract as entirely null implied that the vendee might take advantage of his own wrong and treat it as such; whereas it was merely voidable at the election of the vendor. The question arises, however, whether this means that the contract is void until ratified by the defrauded owner, or valid until rescinded. If the former be the case, and the title does not pass at the time of the sale upon delivery, it is asked when it does pass, and whether it remains forever in the clouds, or in nubibus, and what definite act is essential to pass it afterward. It has been considered not enough to say that the title passes or not, as the vendor pleases, since the very right of rescission implies the subsistence of the contract; for there can hardly be a revocation of a transfer which never took place, and there must have been a title for the owner to disaffirm, as well as a title to convey to the innocent purchaser. The conclusion is accordingly deemed irresistible that a fraudulent vendee of chattels, where there is an absolute and unqualified delivery with intent to transfer the property, acquires the title, though it be merely a naked, voidable, defeasible title, and that on a sale by such vendee the title passes to a bona fide buyer.” (Newmark on Sales, § 200.)
The judgments of the court below in both cases will be affirmed.