243 N.W. 106 | Minn. | 1932
The action is in replevin. One Ed Madden came to plaintiff's place of business, a retail jewelry store, wrongfully represented himself to be Millard H. McDonald, a Minneapolis business man, and stated that he desired to purchase a diamond ring for cash. Plaintiff sold him one for $400. Madden then and there drew and delivered to plaintiff a check on a local bank for the purchase price. He signed the name of Millard H. McDonald as the drawer of the check. Plaintiff delivered the diamond in reliance on the check, which was a forgery and made by Madden with the preconceived intent and design then and there had and entertained to steal the property of plaintiff. Immediately thereafter Madden pledged the diamond with defendant to secure the payment of $195, which defendant in good faith loaned Madden. Defendant has the possession of the diamond and refuses to deliver it to plaintiff; hence this action.
1. In the absence of evidence indicating that credit is to be given, a sale is presumed to be for cash. In the instant case it was expressly stated that the sale was to be for cash. Payment and delivery in the sale of personal property are concurrent and mutually dependent acts. If the payment is evaded by the purchaser upon getting possession of the property, the seller may immediately reclaim the property; the title in such case not passing to the purchaser, the delivery being merely conditional, and the purchaser taking simply as trustee for the seller until the condition is performed. Fishback v. G. W. Van Dusen Co.
2. A check is not payment. It is only so when the cash is received on it.
"There is no presumption that a creditor takes a check in payment, arising from the mere fact that he accepts it from his debtor. *239
The presumption is just the contrary. Where payment is made by check drawn by a debtor on his banker, this is merely a mode of making a cash payment, and not giving or accepting a security. Such payment is only conditional, or a means of obtaining the money. In one sense the holder of the check becomes the agent of the drawer to collect the money on it; and if it is dishonored there is no accord and satisfaction of the debt. * * *. Where goods are sold for cash on delivery, and payment is made by the purchaser by check on his banker, such payment is only conditional, and the delivery of the goods also only conditional; and if the check on due presentation is dishonored, the vendor may retake the goods." National Bank of Commerce v. C. B. N. R. Co.
It follows that the title never passed from plaintiff to Madden.
3. The circumstances under which Madden procured the diamond constituted larceny at common law. Crosby v. Paine,
4. Defendant argues that plaintiff waived the cash payment by voluntarily delivering the diamond, and hence title passed to Madden. In many cases such a question may be one of fact, but upon the record before us the contention is untenable, the pleading is definite, that is all we have. If upon such a record this contention could be said to be the law, the rules above stated would be destroyed. A statement of the facts as pleaded leaves no room for a claim of a waiver. *240
5. Defendant suggests that Madden acquired from plaintiff a voidable title. In a case such as Crosby v. Paine,
6. Defendant, still erroneously assuming that Madden acquired title to the diamond, makes the claim that where one of two innocent parties must suffer a loss due to the fraud of a third person, he must bear the loss whose action enabled the wrong to be done.
It would perhaps be a sufficient answer to say that Madden never acquired title. But there are circumstances wherein the seller is estopped from asserting that the delivery was conditional as against a subvendee in good faith for value who purchases in reliance upon the vendee's muniments of title. For a time the rule seems to have been that a bona fide purchaser for value without notice was protected even where his vendor obtained the goods by fraud, if the fraudulent act was a felony by statute only and was not such as would have been a felony at common law. Phelps v. McQuade,
The rule now under consideration does not depend upon actual title, but rests upon the conduct of the party which precludes him from disputing, as against the innocent acting person, the existence of the title or power which through negligence or mistaken confidence he caused or allowed to appear to be vested in the third party. In order that the real owner of personal property may be estopped from asserting his title against a person who has dealt with one in possession in faith of his apparent ownership, it is the general rule that something more than mere possession and control is necessary. The authorities indicate that possession must be accompanied by indicia of title. Greene v. Dockendorf,
There are authorities holding that where an imposter obtains the possession of personal property under circumstances similar to those here involved and then sells to an innocent purchaser, the original owner may recover the property, because in case of a misrepresentation of identity no title passes which is available even to a bona fide purchaser. Windle v. Citizens Nat. Bank,
Reversed.