13 Barb. 641 | N.Y. Sup. Ct. | 1852
The plaintiffs’ action is brought to recover the value of certain machinery sold to Cutting & Bentley, upon the ground that no title passed, in consequence of the fraudulent representations of the vendees as to their solvency, and ability to pay, at the time of the sale. The defendant Jones was not present at, or a party to, the sale, and has no connection with the property, except that six months after it was made he took a chattel mortgage upon the machinery, as security for a debt due from the defendants Cutting & Bentley. Assuming, for the moment, that the sale is void, to entitle the plaintiff to a verdict against Jones, it should appear at least that he was guilty of a conversion. A demand and refusal, before the commencement of the action, was proved at the trial: but it did not appear that the property had passed into his possession. On the contrary, the proof was quite clear that Bentley was in the actual possession and use of it from the time of the sale until some four months after the action was instituted. With these facts before him, the justice w'ho hold the circuit charged the jury, as matter of law, that Jones was entitled to a verdict, and directed them to find accordingly. They chose to disregard his direction and find a verdict against Bentley and him, both. For this cause alone the verdict should be set aside as to Jones.
There is however an insurmountable obstacle in the way of
.The expression sometimes used in the books, that when a sale is procured by fraud and misrepresentation no title passes to the vendee, must be taken with due qualification. The sale is not absolutely void, but .only voidable at the option of the vendor. “ There can be no doubt of the soundness of the principle that the vendee himself acquires no property in or title to the goods, and cannot retain them against the vendor, if he (the vendee) obtained them by a gross fraud practiced on the vendor under color of a purchase, whether on credit or otherwise.” (Chit, on Cont. 406.) It is not competent to the person guilty of the fraud on the other party to the agreement to avoid the contract
Barculo, Brown and S. B. Strong, Justices.]
The court, I think, should have instructed the jury, as requested by the defendants’ counsel, that without the offer to restore what had been received there could be no recovery against the defendants.
There should be a new trial, with costs to abide the event.