3 Whart. 369 | Pa. | 1838
Separate opinions of the Court, in each case, were delivered as follows, by
By the civil law, husband and wife are considered as persons capable of distinct and separate rights, and of making separate contracts, and they may even sue each other, as independent individuals; but by the common law, they are looked upon as one person; the legal existence of the wife, is to all civil purposes, merged in that of her husband; and, consequently, generally speaking, any contract made with her, is absolutely void.
Such, we think, are the principles which must govern in an action on the contract of sale. But this is an action of replevin, which disaffirms the contract.
*The plaintiff contends that the suit can be maintained on three grounds:
1st. That the property has never been changed; the goods having been obtained under such circumstances of fraud, as vitiated the sale.
2. Because the parties rescinded the contract.
3. Because, by the plea of non-cepit, the property is admitted to be in the plaintiff.
It would be a dangerous doctrine to establish, that where a person purchases commodities which, at the time, he is conscious he shall be unable to pay for, though these goods may have after-wards passed through other hands, in the fair way of purchase, or third persons may have become, in the regular course of business, interested in them, the original seller shall have the right to recover them, in whomsoevér’s hands they may be. But whatever may be the limitation of the right of the vendor, it is certain, as a general principle, that when a person purchases goods, with a preconceived design of not paying for them, it is a fraud, and the property in the goods does not pass to the vendee. Replevin, or trover, will lie by the vendor, against the vendee, although not against a bona fide purchaser without notice ■of the fraud. It is a question of fact, whether the vendee has made an improvident sale, or the defendant has fraudulently obtained the possession of the goods. If the jury believe the defendant formed a deliberate plan to obtain the goods, intending that they never should be paid for, with a preconceived resolution to embezzle the money, or to become insolvent, or to pass them
To show fraud in the defendant and his wife, the evidence referred to in the second, fifth, sixth and twelfth exceptions, was properly received. There was some evidence, namely, the articles of agreement between Mackinley and wife, which were concealed, the sudden expansion of business, and accumulation of goods, much beyond the wants- of her ordinary and legitimate business, the immediate sale of some of the goods at a reduced price, and their repurchase, and the refusal to pay for goods, under the pretences stated, which tended to show a systematic plan and combination between Mackinley and wife to purchase goods, among which this parcel was one, with the fraudulent preconceived design of not paying for them. For this purpose, all the transactions of Mrs. Mackinley, and her declarations, in connection with the business in which she was engaged, as the agent of her husband, were properly admitted in evidence. It is true, that a disposition to cheat one person, cannot be called in to aid evidence of fraud in a subsequent, or prior and distinct transaction. But when it is one of a series of acts, although with dis
2d point. That the defendant has disclaimed the contract. And this is a question for the jury; for if the defendant has disavowed all property in the goods, the vendor may reclaim them and recover the specific articles, or their value, in this action. From the return of the contract of sale, it is obvious, that when once entered into, it cannot be rescinded by either of the contracting parties, without the consent of the other; but an agreement .may be rescinded with the consent of both. When the vendee disavows all property in the goods, and refuses to pay for them, the vendor may elect to consider the contract at an end. If the defendant disavows the contract, and disavows all property in the goods, the vendor may elect, either to proceed on the contract of sale, or by action of replevin, which disaffirms the contract. The of Mrs. under the circumstances of this case, his possession; *and it matters not whether he or she, or both of them, refuse to return the goods to the owner; in either case he is liable for their detention. Husband and wife are so identified, that he is liable, as well for her torts or frauds, as for contracts made by her as his agent. When the sheriff returns that the goods are eloigned, the vendor may recover the value of the goods in this action. It may also be proper here to add, that we do not think, that because the creditors have brought actions on the contract, the plaintiff is thereby prevented from supporting an action of replevin. These actions are not brought on the same, but different contracts, and although the parties may be the same, yet the actions are not inconsistent.
But it is said, and this brings me to the consideration of the third point, that not only has the vendee disclaimed property in the goods, but that he has admitted on the record, that the property belongs to the plaintiff: and so unquestionably are the authorities, all of which have been collected by the industry of the counsel, with the exception of a solitary dictum of Justice Burroughs, in Clarke v. Davies, 7 Taunt. 72. By the plea of non: cepit, the caption and detention only are put in issue, and not the property which is admitted. Grilb. on Rep. 165, and the other authorities cited. The only point to which the evidenco
Eor the reason stated in a preceding part of this opinion, we think that the affidavit of Mrs. Mackinley, which forms the third specification of error, was correctly admitted, nor do we see any thing exceptionable in the refusal of the permission to ask the as contained in the fourth error.
*The seventh and eighth errors were considered together. The object of the evidence which was admitted, was to show that the goods of one of the vendors, were sold at auction, at an under value, and this was one of the means of identifying the goods. But this was not the best evidence, for Mr. Eassit, by whom the letter was written, should have been examined, and from him, or in some other way, it should have been ascertained, whether the ticket which was enclosed in the letter by him to the vendor, was attached to the goods sold at auction.
The ninth and eleven errors, are intended to question the decision of the Court, in Ellmaker v. Buckley, (16 Serg. & Rawle, 72.) We have examined the judgment of the Court, as delivered by Chief Justice Gibson, and see no reason to doubt the soundness of the» principle asserted by him, in relation to the order of the examination of witnesses. We therefore see no error in this part of the case, even if such an exception was the subject of review in error.
The first error is that the judge admitted as witnesses severally, Peter W. Wiltbank and others; those individuals being interested in the action, and therefore incompetent to testify.
By the agreement of the 14th September, 1835, the creditors of Mary Mackinley bound themselves to each other, to take such lawful measures as maybe necessary to investigate her pecuniary affairs and transactions, and to discover and apply her property to the payment of her just debts, without preference or distinction. They also agreed to contribute in the ratio of -their respective debts, to- such expenses as may be necessary to carry the agreement into effect.
At a subsequent meeting of the creditors of Edward Mackinley, (and in this transaction his and her creditors are the same,) it was resolved, as the sense of the meeting, that all replevins and other process which had been issued, were for the common benefit of those who had or might sign the agreement of the 14th September, 1835.
The parties to these agreements, as is very clear, make common cause with each other. As they are entitled to all the benefits as equal participators in the amount recovered in the replevin, so they are liable to contribute to its expenses and costs; and a refusal to do so would be a gross fraud on the plaintiff on record. He could not discontinue the suit without their assent, nor could they refuse without breach of the agreement, to contribute to the expense of the suit, in the ratio of their’respective debts. The fact that their names do not appear on the record is immaterial. In Gallagher v. Milligan, (3 Penn. Rep. 177,) it was held, that any person, who, *at the time of the commencement of the is entitled to a of the money sued for, is liable to costs; and is, therefore, incompetent to give evidence, although he may release his interest to the plaintiff on record. On the authority of this case, we are of the opinion, that the Court erred in admitting the witness without payment of costs.
Judgment reversed, and a venire de novo awarded.
The opinion of the Court in Mackinley v. Heivitt, was also delivered by
The point ruled in Mackinley v. M'Gregor, renders a minute investigation of this case wholly unnecessary. It would lead to a repetition of the principles there stated; for in all the essential features, the cases are the same. It is, however, an act of justice to acknowledge the aid we have derived from
Judgment affirmed.
Cited by Counsel post, 492; 4 Wharton, 502; 6 Id. 421; 3 Watts & Sergeant, 480 ; 6 Id. 348 ; 2 Barr, 155 ; 3 Harris, 187 ; 5 Id. 312; 1 Casey, 198 ; 2 Grant, 200 ; 1 Wright, 216 ; 2 P. F. Smith, 532: 2 Miles, 453.
Cited by Court 7 Watts, 307 ; 2 Harris, 277 ; 4 Id. 199 ; 8 P. F. Smith, 457.
Explained 9 Harris, 369, and commented on 2 Miles, 239.
As to contracts of married women under the act of 1848, see 8 Casey, 433; 11 Id. 389 ; 1 Wright, 254 5 P. F. Smith, 386.
See 3 Harris, 513; 5 P. F. Smith, 177.
See 7 Wright, 442.