25 N.Y.S. 529 | N.Y. Sup. Ct. | 1893
The defendant purchased of the plaintiff on the 27th day of January, 1891, a bill of liquors of the value of $251.73. The plaintiff recovered a judgment in the supreme court against the defendant for the purchase price of the goods on the 27th day of June, 1891. An execution was issued thereon to the sheriff, which was returned unsatisfied in whole. Proceedings supplementary to execution were thereafter instituted against the defendant. The plaintiff, having learned that the defendant, before the recovery of said judgment, had sold and transferred the goods to his wife, Mary M. Devendorf, commenced an action against her for the recovery of the possession of the goods. All of the goods sold were embraced in the complaint, and were taken by the sheriff, with the exception of goods amounting in value to $80, which the sheriff could not find. After the commencement of the said replevin action, and before the recovery of judgment therein, the plaintiff, having learned that Devendorf obtained the goods by false and fraudulent representations as to his responsibility, on the 21st of September, 1891, caused the said judgment against Devendorf, obtained as aforesaid for the purchase price of the goods, to be discharged of record by filing with the clerk of the county where the judgment was docketed a certificate in writing executed by the plaintiff, directing the clerk to satisfy the said judgment of record, and the clerk thereupon did satisfy the judgment of record; and thereafter this action was commenced, the plaintiff alleging in its complaint that the defendant obtained said goods from the plaintiff through fraud and deception with the intent not to pay for them, and with the intent to cheat and defraud the plaintiff out of the same, and
The nonsuit was granted upon the ground that the plaintiff, having brought an action for the possession of the goods, thereby disaffirmed the sale, and stood upon its rescission, and could not thereafter maintain an action upon the theory that the title to the property passed to the defendant upon the sale, thereby divesting the plaintiff of its title therein. It may well be doubted if the non-suit was put upon the proper ground. The plaintiff had, in its action against Mrs. Devendorf, recovered only part of the property, and sought by this action to recover the damages sustained by the fraudulent conduct of the defendant in obtaining possession of its property by fraud. The plaintiff simply claimed to recover the damages which it had sustained by the fraud of the defendant, and the damages were the value of the property which it had failed to obtain in its replevin action against Mrs. Devendorf. Whether such an action, under such circumstances, can be maintained, has been the subject of much discussion in our courts. We see no reason upon principle why it cannot be sustained. It was held in Powers v. Benedict, 88 N. Y. 605, that “a vendor of goods, the sale and delivery of which was induced by fraud on the part of the vendee, does not, by an effort to retake the entire property which is successful in part only, lose the right to pursue the vendee for the value of the unfound portion; nor is the effort a defense to an action to recover possession against one in whose hands a part is found.” Foundry Co. v. Hersee, 103 N. Y. 25, 9 N. E. Rep. 487; Hersey v. Benedict, 15 Hun, 282; Sleeper v. Davis, 64 N. H. 59, 6 Atl. Rep. 201; Farwell v. Myers, 59 Mich. 179, 26 N. W. Rep. 328. But the plaintiff was properly nonsuited, for the reason that the judgment for the purchase price of the goods, having been paid, became a bar to this cause of action. Caylus v. Railroad Co., 76 N. Y. 609. As we have seen, plaintiff recovered a judgment for the entire purchase price of the goods, and can recover nothing more in this action. It is not entitled to two judgments against the defendant for the purchase price of the goods. All of the plaintiff’s claims arising out of the sale of the goods presumptively were merged in the judg
