| N.H. | Jun 15, 1873
I. The evidence that the defendant bought other goods of Moore and others, and paid for them fifty per cent, upon a compromise ; that he made no reply when Moore said he thought the transaction was “ a piece of rascality,” and “ a put-up job by him and others to cheat us Boston folks out of our liquors; ” and that he refused to buy of Warner unless he could obtain the goods before paying for them, was competent, within the doctrine of the authorities cited by the plaintiffs. Whether evidence of this kind should be excluded on account of its remoteness in point of time, is a question of fact. Darling v. Westmoreland, 52 N. H. 401, 408-411; Haines v. Ins. Co., 52 N. H. 467.
II. We have carefully reconsidered, in the light of the defendant’s argument, the question, decided in Stewart v. Emerson, 52 N. H. 301, whether obtaining goods, under color of a purchase, by a dishonest concealment of an intent not to pay for them, is a fraud in law ; and, upon full examination and reflection, the decision in that case is affirmed.
In this case, both parties knew that a sale of whiskey and gin would be illegal, and that the plaintiffs could not compel the defendant to perform his promise of payment. But, the jury having found that the defendant did not intend to pay as he promised, there was not the mutual understanding that would have been necessary to constitute a contract, in favor of the defendant as against the plaintiffs, if the sale of liquor had been legal. Stewart v. Emerson, 52 N. H. 318, 319. Consequently there was no sale, legal or illegal, by which, as against the defendant, the plaintiffs could be bound, or by which, as against the defendant, the plaintiffs’ title could be affected. There being no sale, legal or illegal, and no contract to be rescinded, the title never passed from the plaintiffs to the defendant, and the plaintiffs maintain this action, not upon an illegal contract, or a rescission of a contract, but upon their title, unchanged and unimpaired by any contract, lawful or unlawful.
The plaintiffs’ knowledge of the fact that they could not compel the defendant to perform his promise of payment, did not make the understanding that he would pay, a mutual one. If they had known he intended not to pay, they would not have parted with the possession of their goods. His concealment of his intent not to pay, by which he obtained the goods, was the gist of the fraud. That concealment was as fraudulent as if the plaintiffs had supposed they could compel him to perform his promise. There was no law to prevent his paying, if he chose to do so. He induced them to believe that in fact he would pay, notwithstanding the illegality of a sale of such goods. If he had not
III. The ruling, that the measure of damages was the market value of the goods at the time of the conversion, is one that the defendant cannot complain of. The market price, in the ordinary sense, is generally, but not always, the test of value. For such a tort as a conversion of goods a plaintiff may be entitled to large damages, though unable to sell the goods at any price. He may be greatly injured by the loss of goods which he cannot sell, but which would be productive of great benefit, and therefore would be of great value, without a sale. The limitation of the damages to the market value might have been (although the verdict seems to show that it was not) unjust to the plaintiffs ; but it was sufficiently favorable to the defendant.
Judgment on the verdict.