| R.I. | Oct 6, 1866
1. The defendant, being in the place of the voluntary assignee of Philip A. Doyle, could have no better right to the property assigned than Doyle himself. Doyle, according to the finding of the jury, was a fraudulent purchaser, and therefore held the property subject to the right of the plaintiff to disaffirm the sale and reclaim it. Subject to this right it passed to the assignee, and when the assignee sold it, the proceeds were in his hands subject to the same right, and so likewise passed into the hands of the defendant. The plaintiff having chosen to disaffirm the sale, those proceeds were thenceforth monies in the defendant's hands belonging to the plaintiff, and we see no reason why the plaintiff should not, according to the general rule in such a case, be entitled to recover them, in an action of assumpsit, on an implied promise on the part of the defendant to pay them over to him.
2. The defendant contends that the plaintiff could not maintain trover or replevin without a previous demand, and that therefore he cannot, without such demand, maintain assumpsit. *374 But we do not think such demand would be necessary even in trover or replevin. The law on this point is laid down in Thurston v.Blanchard, 22 Pick. 18. The plaintiff in that case sued in trover for goods sold on fraudulent representations, and it was objected that the suit could not be maintained without previous demand. But the Court held the contrary, and Shaw, C.J., delivering the opinion, said: "Such demand and a refusal to deliver are evidence of a conversion when the possession of the defendant is not tortious, but where the goods have been tortiously obtained, the fact is sufficient evidence of conversion. Such a sale, obtained under false and fraudulent representations, may be avoided by the vendor, or he may insist that no title passed to the vendee, or any person taking under him, other than a bona fide purchaser for value and without notice, and in such a case the plaintiff may maintain replevin or trover for his goods." In this case the conversion is proved, not only by the fraudulent purchase of the goods, but also by their subsequent sale by the assignee of the purchaser. Neither do we think it was necessary that the notes given by Doyle should have been tendered to the defendant before commencing the action. It was sufficient, as decided in Duval Inglehart v. Mowry, 6 R.I. Rep. 479, that they were produced to be impounded at the trial.
3. Inasmuch as the money for which this suit was brought was still in the defendant's hands at the commencement thereof, and there is no evidence that he had been, in any way, prejudiced by the plaintiffs delay in bringing it, we do not think it was error in the Judge who tried the case, to refuse to rule, as a matter of law, that the plaintiff was estopped from prosecuting his claim for the money in question.
4. We do not think the verdict is so palpably erroneous as to entitle us to set it aside.
Motion dismissed. *375