16 A.D. 49 | N.Y. App. Div. | 1897
This action is brought by the firm of Converse, Stanton & Cullen to charge the defendant, as trustee for the benefit of the plaintiffs, with the sum of $5,312.99, and interest, being the value of certain merchandise which is claimed to have been wrongfully in his possession. Between January 29 and April 25, 1890, the plaintiffs sold to the firm of Fechheimer, Rau & Co. certain goods of the value above stated. The plaintiffs claim that these sales were induced by the fraud of Fechheimer, Rau & Co., who Tailed on May 1, 1890, at which time certain . judgments were entered against them, upon which execution was issued and the goods in question, with other goods of the last-named firm, were taken possession of by the sheriff.
The plaintiffs brought two replevin suits, in which the property iri question was delivered to them. When those actions were ■ brought to trial the plaintiffs’ counsel admitted his inability to prove a demand for the goods before the commencement of the suit, and the complaint was dismissed for this reason, and judgment entered in the actions against the plaintiffs for the value of the goods. Thereupon the plaintiffs paid to the sheriff the amount of the judgments, at the same time serving upon him a notice that the money was the proceeds of the goods which had been obtained by the fraud of Fechheimer, Rau & Co.; that the plaintiffs were entitled thereto ; that they demanded a repayment of the same, giving the sheriff warning not to apply it to any other purpose, and, upon the refusal óf the sheriff to pay the money, brought this action for the purpose of impressing a trust upon the moneys thus paid as being the equitable proceeds of the property fraudulently obtained of them by Fechheimer, Rau & Co. A trial was had at Special Term, in which the judgments in the replevin suits were set up as a bar to
The defendant claims: Fi/rst, that the action in equity cannot be sustained, inasmuch as the plaintiffs had their remedy at law, and, at the opening of the trLl, moved to dismiss the complaint upon that ground; the motion was denied and the defendant excepted. Second, that there was not sufficient evidence to justify the court, in finding that the purchase was fraudulently made. Third, that evidence of contemporaneous frauds was improperly received. Fourth, that there was not sufficient evidence to establish the identity of the property. Fifth, that a stipulation admitting the identity of the goods, made upon a former trial, was improperly admitted upon the second trial. Sixthl that the amount of the judgment was too large, because it included interest up to the time of the demand upon the sheriff.
First. As to the equity jurisdiction we entertain no doubt. We think this is clearly established by the reasoning of the court in the ■case of American Sugar Ref. Co. v. Fancher (145 N. Y. 552, 561) and by other authority. (1 Pom. Eq. Juris. §§ 277, 278.) Moreover, the point has been waived by the failure of the defendant to plead this defense affirmatively. In the case of Hawes v. Dobbs (137 N. Y. 470) the court used the following language: “This is not a case where the plaintiff is defeated because, while he had a ■perfect right of action for equitable relief, he had also a complete remedy at law. If his action had been of that nature, then ■* "x" * he would have been entitled to maintain his action for ■equitable relief because the defendants had not set up in their answer as a defense that he had a remedy at law.”
Second. We think there was ample evidence to establish the fraudulent representations inducing the purchase. The purchaser and seller were both subscribers to Dun’s mercantile agency. The purchaser had made a specific statement to the agency, as of Novem
Third. The evidence as to contemporaneous frauds consists of a similar purchase of goods, upon credit, from Bliss, Fabyan •& Go., and from two other firms. The matter of this first firm resulted in litigation in which Bliss, Fabyan & Go. established their allegations: The court, in speaking of the- fraud, said: “No attempt was made .on the trial to justify the statement made by Fechheimer, Ran & Co. to Bliss, Fabyan & Co,,, in December, 1889. It was grossly untrue.” (Bliss v. Sickles, 142 N. Y. 649.) It needs no citation of authority that contemporaneous frauds are evidence to establish the truth of an issue of a similar character between other- parties.
Fourth. The identity of the goods was clearly established by the admission of the defendant’s counsel, made; Upon the former trial, which was offered in evidence and is in the following -language: '“ Defendant’s counsel made no question as to the identity of the goods in the old replevin suit being the same goods which Mr. Stanton says lie sold.” At the present trial the defendant moved
Sixth. As to the amount of the judgment, however, it appears that the value of the property returned to the plaintiffs in the replevin suits was $4,701.16. We think that interest does not commence to run upon this principal sum until the time when the money was paid to the sheriff and the demand made for its return, which was on the 12th day of July, 1892. The plaintiffs received the
The judgment should be modified in this respect by deducting from the recovery the interest from July 12, 1892, up to July 6, 1896, the date of the judgment, and as thus modified affirmed, with costs.
All concurred.
Judgment modified by deducting from the recovery the interest from July 12, 1892, to July 6, 1896, and as thus modified affirmed, with costs.