114 Ala. 304 | Ala. | 1896
Under the rule frequently declared by this court, three facts are essential to arm the seller of personal property with the right to disaffim the sale on the ground of fraud, and reclaim the property : First. The purchaser must have been insolvent or in failing circumstances at the time of the sale. Second. Pie must then have had either a design not to pay for the property, or have had no reasonable expectation of being able to pay for it. And, third. He must have made some fraudulent misrepresentation either as to his financial condition or in respect of his intent not to pay, or of his expectation as to paying or he must have fraudulently concealed his condition or his intent not to pay, or his want of expectation that he would be able to pay. — Loeb v. Flash, 65 Ala. 526 ; Spira v. Hornthall, 77 Ala. 137 ; McCormick v. Joseph, 77 Ala. 236 ; Hornthall v. Schonfeld, 79 Ala. 107 ; Kyle v. Ward, 81 Ala. 120 ; LeGrand v. Eufaula National Bank, 81 Ala. 123 ; Robinson & Ledyard v. Levi, 81 Ala. 134; Wollner & Lowenstein v. Lehman, Durr & Co., 85 Ala. 274 ; Darby & Co. v. Kroell, 92 Ala. 607 ; Johnston v. Bent, 93 Ala. 164; Traywick v. Keeble, 93 Ala. 498 ; Cohn Bros. & Co. v. Stringfellow, 100 Ala. 242 ; Hudson v. Bauer Grocery Co., 105 Ala. 200. It cannot be said that this is a very happy or concise statement of the doctrine . One who comes to buy goods on á credit impliedly represents that he is or will be able, to pay for them, and
The action of the trial court in giving charge 2 requested for the plaintiff, and in refusing charges 12, 13 and 14, asked by the defendant, is fully sustained by the foregoing views of the law in the premises.
It was not essential to a recovery by plaintiff that lad faith on the part of Mrs. Maxwell should be shown, assuming that she paid value for the goods. It would have been quite sufficient to a verdict against her if the jury had found that she knew facts and circumstances which should have excited inquiry on her part, which if diligently prosecuted would have led to a knowledge of fraud of J. K. Maxwell & Co., and that either her suspicions were not thereby aroused, or that she negligently failed to prosecute the inquiry. And while the purchase by her under these circumstances would have been a purchase constructively in bad faith, or in what the law deems bad faith, though untainted with any evil intent, the jury would not have so understood charges 4 and 5 requested for defendant in all probability; but to the contrary they might have been misled thereby to the conclusion that their verdict should be for the defendant unless they believed Mrs. Maxwell had actually and affirmatively intended to defraud. These charges were, therefore, properly refused.
The fact that one of the firm of purchasers represented to the agent of the seller, who made the sale involved here, a year before such sale, that his firm owed only one hundred dollars, when in fact they owed largely more than that, though perhaps of little probative force because of the lapse of time, was yet pertinent, relevant and material, as tending to show concealment of their
We have considered all the rulings of the trial court referred to in the brief of appellant’s counsel, and find no error in them.
Affirmed.