1 N.E. 404 | NY | 1885
This action is based upon the right of a vendor of goods to rescind the contract of sale, and to recover the goods, where the sale and delivery were obtained by the fraud of the vendee. The fraud in such case does not intercept the passing of the title to the goods to the purchaser, but the title acquired is defensible, subject to the right of the vendor, on the discovery of the fraud, to reassert his original right and reclaim the property, unless it has come to the hands of a bona fide purchaser. (Barnard v. Campbell,
The defendant Wertheimer is the assignee of Goldsmith Co., the fraudulent vendees, under a general assignment made by them to the defendant for the benefit of creditors, and had possession of the goods in question as part of the assigned property at the time of the commencement of this action. But he was not a purchaser for value, and he acquired no better title, as against the plaintiff, than his assignors had at the time of the assignment. The trial court dismissed the complaint on the ground that there was no proof that the goods were demanded of Wertheimer before bringing the action. It is not claimed that Wertheimer was cognizant of the fraud committed by Goldsmith Co. The legal title to the goods at the time of the assignment was in Goldsmith Co., no proceeding having been taken by the plaintiff to rescind the *153 sale until after the assignment had been made. The defendant Wertheimer, therefore, lawfully acquired the title and possession of the goods, but subject to the same right of reclamation in the plaintiffs, upon their rescinding the contract, as they before had against the assignors. The original possession of Wertheimer being lawful, and not tortious, it was necessary to change the character of his possession by a demand and refusal before the plaintiffs could maintain an action against him for conversion, or to recover the goods. (Addison on Torts, 312; Holbrook v.Wight, 24 Wend. 169; Mount v. Derick, 5 Hill, 455; Pierce v. Van Dyke, 6 id. 613.) There was no proof that the plaintiffs demanded the goods of Wertheimer, personally, at any time. It was shown, however, that the plaintiffs' attorney, a few days after the making of the assignment, and just prior to the commencement of the action, went to the store where the goods were, and found three persons, one of whom was Goldsmith, one of the firm of Goldsmith Co. He asked if the assignee of the Goldsmiths was there, and was informed that he was not, and that Goldsmith was in charge. The witness then stated to Goldsmith that he was attorney for the plaintiffs, and in substance demanded the delivery of the goods on the ground that they had been obtained by fraud. In reply Goldsmith said that he had no power or authority to give up the goods, as the firm had made a general assignment for the benefit of creditors. It does not affirmatively appear what authority Goldsmith had, or in what capacity he was acting. The most that can be inferred from the evidence is that he had the custody of the assigned property for the assignee, and had been placed in charge by him. It is insisted that the demand made of Goldsmith was sufficient to support the action against Wertheimer. If Goldsmith in refusing to deliver the goods was acting in obedience to Wertheimer's orders, there would be no question. But this cannot be assumed in the absence of any evidence on the subject. The refusal of a servant to deliver goods intrusted to him by his master, on a demand by a stranger, is not sufficient evidence to maintain replevin against the servant, nor against the master when a demand and refusal *154 is necessary to make the possession of the defendant tortious, unless the servant acted under the direction of the master in refusing to deliver the goods. (Mount v. Derick, supra.) It can make no difference in respect to the sufficiency of the demand against the master, that the servant knew that the person making the demand was entitled to the property, or that the master's title was voidable. An agent or servant having the custody merely of goods cannot bind the principal by acceding to the demand of a third person, nor, on the other hand, by refusing to deliver the property. It may be that in a case like this, a principal by concealing himself, or going beyond the jurisdiction, so as to render a personal demand impracticable, would be deemed thereby to have conferred upon the custodian of the property an authority to answer a demand made by the true owner. This question does not arise in this case.
It is also insisted that the defendant by setting up in his answer title in himself, as assignee, waived the necessity of a demand. This claim is, we think, untenable. The answer of Wertheimer put in issue the allegation in the complaint, that the defendant wrongfully detained, and refused to deliver, the goods, and also set up his title under the assignment. A defendant may put his defense upon distinct and even inconsistent grounds. The authorities seem to be decisive that the plea of title was not a waiver by Wertheimer of his right to insist that he could not be made a wrong-doer, without proof of demand and refusal. (Scofield v. Whitelegge,
We see no answer to the point upon which the suit was dismissed, and the judgment should, therefore, be affirmed.
All concur.
Judgment affirmed.