22 Wis. 384 | Wis. | 1867
The evidence in this case will hardly warrant us in saying that the sale of the goods by the plaintiffs to Dayton should be avoided on account of fraud. It does not appear that Dayton made any fraudulent representations in regard to his business, or resorted to any artifice to deceive the vendors in-respect to his pecuniary responsibility. The witness Platt, who was a traveling agent for the plaintiffs in Iowa and Wisconsin, testifies that he went to Dayton’s store at Ossian, and solicited the order from him. He says : “ After I had received the order for the goods from Dayton, I saw it was a considerable amount, and I thought I would ask him how matters stood. ■ I did not wish to be impertin
But it is said, in the next place, that the circumstances attending the sale by Payton to Comstock, or to the bank, were such as to authorize the inference that the purchase was made of the plaintiffs with the design to defraud. It appears that the salesman, Platt, took the order for these goods some time in February. They were sent by the Merchants’ Pespatch to Prairie du Chien, marked “ G. S. Payton, Ossian, Iowa.” About half of the goods arrived at Prairie du Chien on the 26th of March following; the remainder on the 4th of April. The invoices and bill of lading were sent to Payton. He took possession of the goods at Prairie du Chien, and, on the 12th of April, either himself sold them in the original packages to the bank, or sold them to Comstock, who made that sale. The bank insists that it
The other circumstances relied on to show fraud in the purchase, throw little or no light on the question as to when the fraudulent design was formed. Upon the other points, whether the sale was a conditional one and voidable because the condition was not performed, we have come to this conclusion upon the evidence. We think the sale of each bill of goods must be treated as a transaction separate and distinct from the others. Goods of one description were to be paid for on delivery; those of another description were to be paid for by note at sixty days; while those of a third description were to be paid for by a note at four months. Dayton sent forward his notes for the goods purchased oh credit, according to the conditions of those sales. But instead of making immediate payment for the cash bill, he sent on his note payable in forty days. He certainly had no right to vary thus the terms of sale for this bill of goods. And, as the delivery of those goods was made upon condition that he pay for them in cash, and he has failed to do this, the plaintiffs may reclaim that bill of goods. The soundness of this principle is not contested by the counsel for the bank, but it is said the agent of the bank had no notice that the delivery of this bill of goods was conditional. This is a mistake. The evidence shows most clearly and positively that the agent, Ray, had notice of this condition, and' that it had not been waived at and before the time the sale was made to the bank. ■
By the judgment of this court, as already announced, it was ordered that the judgment of the circuit court be reversed, and that a venire de novo be awarded. A motion
The remittitur, therefore, should not he for a new trial, hut contain the direction mentioned in the motion.
By the Court. — Ordered accordingly.