Easter v. Allen
90 Mass. 7
Mass.
1864
Check Treatment
Merrick, J.

It appears from the bill of exceptions to have been satisfactorily proved or admitted that the goods replevied were formerly owned by the plaintiffs, and were sold by them to N. Allen. He afterwards sold and delivered them to the defendant, who claims title thereto only under and by force of that sale to him. The plaintiffs allege that the sale by them to N. Allen was induced, and that he obtained possession of the goods, by fraud and by false and fraudulent pretences. If such was the fact, they may undoubtedly rescind and avoid their contract of sale, and may maintain this action against the defendant, unless he was a purchaser in good faith, for value paid and without notice of the fraud. Hoffman v. Noble, 6 Met. 68. Rowley v. Bigelow, 12 Pick. 307.

The plaintiffs, having produced evidence upon the trial tending to show the alleged fraud, asked the court to instruct the jury that if N. Allen obtained the goods from them by fraud and false pretences, the burden of proof was upon the defendant to show that he bought them in good faith and for value paid. But the court declined to accede to this request, and ruled that the burden of proof was on the plaintiff to show by a preponderance of evidence, not only that the goods were obtained by N. Allen by false pretences, but also that the defendant was not an innocent purchaser ; and the jury were accordingly instructed to that effect.

This ruling was erroneous. It was sufficient in the first instance for the plaintiffs to prove that they were the owners of the goods, and that their title thereto was never devested by *10any lawful contract binding upon them. They had, therefore, if such were the fact, an undoubted right to reclaim and recover the goods from any person who had not purchased them in gooa faith and for value paid. This is an exception of which the defendant might avail himself. But, to establish the validity of his title acquired under the sale to N. Allen, it is incumbent on him to show that he was á purchaser in fact, and paid value for the goods. Proof to this effect will establish his right, unless it bo further shown by the plaintiffs that, at the time of his purchase, he had knowledge of the fraud.

In respect to promissory notes, it has been repeatedly determined that if they have been fraudulently obtained from the maker, or fraudulently put into circulation, in an action thereon by an indorsee, the burden of proof, after such fraud has been established, is on him to show that he became possessed of them in good faith, by a purchase and payment of value. Sistermans v. Field, 9 Gray, 331. Estabrook v. Boyle, 1 Allen, 412. Tucker v. Morrill, Ib. 528. Smith v. Edgeworth, 3 Allen, 233. The reason of the rule is applicable with greater force to the case of' chattels obtained by fraud ; and therefore a purchaser from a fraudulent grantee, who had no just title, ought to be required to prove a fact necessarily in his own knowledge, if such fact occurred, that he paid value for the goods which he purchased. This rule, in its application to chattels, was distinctly recognized and affirmed in the case of Pringle v. Phillips, 5 Sandf. 157. And so in the cases of Hoffman v. Noble and Rowley v. Bigelow, ubi supra, the subsequent purchaser was allowed to maintain his title upon showing affirmatively on his part that he paid value for the chattels transferred to him by a fraudulent vendee. The same rule has been observed and practically enforced in reference to real estate. Somes v. Brewer, 2 Pick. 184. Green v. Tanner, 8 Met. 411.

The further rulings of the court, to which exception was taken by the plaintiffs, were unobjectionable. The testimony offered as to what was said by D. P. Dodge, and what answers were returned to the plaintiffs to their inquiries made in Tremont Row, was, under the circumstances stated, inadmissible. It *11was an offer of proof, not of what was said by any party to the suit, as to any of the matters involved in its issue, but by strangers who had no connection with or interest in it, and therefore was obviously incompetent. The evidence which was admitted in relation to the conduct of the plaintiffs in reference to the attendance of N. Allen as a witness on the tidal was competent, as having some tendency to show an effort on their part to suppress the introduction of material evidence in the case, and thus to obtain an unfair and unjust advantage. Such conduct might well create a doubt whether their allegation as to any fraud committed by Allen was well founded.

The exceptions, therefore, as to the rejection and admissibility of evidence must be overruled; but they are sustained as to tile ruling of the court upon the subject of the burden of proof.

Exceptions sustained.