Klein v. Rector, 57 Miss. 538

Klein v. Rector

57 Miss. 538 | Miss. | 1880

Chalmers, J.,

delivered the opinion of the court.

The plaintiff’s right to recover was rested upon two grounds: 1st., that there had been such fraud practised upon him by the vendee in the sale of the goods as entitled him to rescind the contract and reclaim the goods at his election, and in *543invitum as to the vendee; 2d, that there was in fact an actual rescission and re-investiture of title in him, by mutual agreement between himself and the vendee, before the rights of the assignee of the latter intervened.

In order to give to the vendor of personal property the right of his own motion to declare the contract at an end, and reclaim the property, where the sale has been completed and delivery has taken place, there must be shown such fraud upon the part of the purchaser as will fall but little, if at all, short of supporting a prosecution for obtaining goods under false pretences. It is essential that the representations claimed to be fraudulent should have been untrue in point of fact, should have been known to be such by the party making them, and should have been acted upon by the seller under the belief thereby engendered that they were true.

It is sometimes said that the circumstances must be such as to warrant the belief that the purchaser never intended to pay for the goods, or could have had no reasonable expectation of so doing. Where such a state of facts exists, the seller may reclaim the property at any time before the rights of third persons have intervened, and by any means short of a breach of the peace. Benjamin on Sales, § 429 et seq.; Hodgeden v. Hubbard, 18 Vt. 504 ; Johnson v. Peck, 1 Wood & M. 334; Rowley v. Bigelow, 12 Pick. 306. The testimony demurred to here neither proves nor tends to prove this state of facts. It appears only that the goods were sold in consequence of representations, made by the son of the purchaser, that his father was solvent, and that shortly afterwards, — how long is not shown, — the purchaser failed in business and made an assignment for the benefit of his creditors. We cannot from this meagre proof infer the existence of a state of facts that would warrant a reclamation of goods once delivered, the title to which had become absolute in the purchaser.

Neither can the judgment of the court below be supported upon the theory that there was a mutual rescission of the contract of sale and a re-investiture of title in the seller before the execution of the general assignment to creditors. When parties agree to rescind a sale once made; and per*544fected, tbe same formalities of delivery and acceptance are necessary to revest the property in tbe original vendor which were necessary to pass it in the first instance from him to the vendee. Quincy v. Tilton, 5 Greenl. 277 ; Miller v. Smith, 1 Mason, 437. There was in this case no delivery at all. There was a contract to re-sell or rescind, but before it was made effective by a delivery, either actual or constructive, it was broken up by the general assignment, and the goods -were taken possession of by the assignee.

Judgment reversed, and judgment here sustaining the demurrer.