27 Barb. 652 | N.Y. Sup. Ct. | 1858
■ The complaints in these actions contain two or more counts confessedly on contract and well pleaded, and another count which sets forth, substantially, that the plaintiffs sold and delivered to the defendant goods to
To avoid the objections presented by the demurrer, the plaintiffs must satisfy the court, 1. That the cause of action set forth in the last count of the complaint is upon contract. 2. That fraud is sufficiently set forth therein to justify a rescission of the contract. 3. That no specific act on the part of the plaintiffs, other than bringing this action, was necessary to be done to manifest the plaintiff’s intent to rescind the contract. 4. That the facts justify the plaintiffs in making their election to sue in assumpsit rather than tort. 5. That in making such election they do not thereby adopt the express contract, but rely on the implied contract to pay, arising from the delivery and the defendant’s possession of the goods.
1. I think the plaintiffs meant to bring their action upon contract, and that the terms employed favor the conclusion that the count is on contract, rather than in tort. It alleges a sale and delivery of the goods, a fraud simply to avoid the term of credit, a liability to pay for the same upon delivery, and a demand of judgment for the price or value, with interest from the time of delivery. The words bear that construction rather than the other; and perhaps some significance should be given to the fact that the other causes of action are plainly
2. The count also alleges, in effect, a fraudulent purchase ; an intent not to pay when the purchase was made; and a design then formed to cheat the plaintiffs out of the value of the goods. If such an intent is established by sufficient evidence, it will justify a rescission of the contract, and would have authorized an action of replevin, or of trover, for the goods. (Cary v. Hotailing, 1 Hill, 311. Ash v. Putnam, Id. 302. Root v. French, 13 Wend. 570.)
3. As the plaintiffs had received nothing from the defendant on the purchase, except a worthless verbal promise, there was nothing which they were bound to return as a condition precedent to the right to recover. If they had received a note, or goods, or part payment in money, they would probably have been obliged promptly on discovery of the fraud to restore every thing which they had received under the repudiated contract. (Masson v. Bovet, 1 Denio, 69. Boughton v. Bruce, 20 Wend. 34. Wheaton v. Baker, 14 Barb. 594.) But I do not see what they could possibly do in this case previous to bringing the action, to manifest their intent to rescind, unless it was to give notice to the defendant. I think that was not necessary. If the action had been in tort, and the original purchase fraudulent, and the possession of the defendant consequently wrongful, an action of replevin or of tort would have lain, without any demand or notice. (Colville v. Besly, 2 Den. 139. Hawkins v. Appleby, 2 Sandf. 421. Ash v. Putnam, 1 Hill, 302.) And it is difficult to see why it should any more be required simply because, not the facts, but the form of action is changed. The defendant cannot complain, because he is supposed to know that his fraud avoids the express contract, and makes him, by implication of law, liable to pay immediately upon delivery of the goods. (See also Des Arts v. Leggett, 16 N. Y. Rep. 582.)
4. Sor do I see how, after the repeated adjudications of this court on the question, it is possible to say that the plain-*
But the cases in our own courts recognize no such distinction. They seem to allow it to be done in all cases where the plaintiff would have been allowed to pursue his remedy in tort, and the decisions in this court have been too numerous and too uniform to allow us now to set up any distinction or limitation, even if it were desirable on principle. (Putnam v. Wise, 1 Hill, 234 and note. Cummings v. Vorce, 3 id. 283 and note. Berly v. Taylor, 5 id. 577. Brownell v. Flagler, 5 id. 282. Baker v. Robbins, 2 Denio, 136. Osborn v. Bell, 5 id. 370. Camp v. Pulver, 5 Barb. 91. Hinds v. Tweddle, 7 Howard, 278. Butts v. Collins, 13 Wend. 154. See also Lightly v. Clouston, 1 Taunt. 113. Hill v. Jerrott, 3 id. 274. Young v. Marshall, 8 Bing. 43.) There is scarcely a case in this state which holds a contrary doctrine. The only one that has been presented to my notice in conflict with these is that of Moffatt v. Wood & Fry, appended to the defendant’s points but not rep'orted. I think we must regard this last case as a departure from the line of authority established by our own courts, and therefore not to be followed. The case of Moffatt
5. The remaining question is, what is the effect of a waiver of the tort ? Does it restore the express contract which has been repudiated for the fraud; or does it leave the parties in the same condition as if no express contract had been made, to such relations as result by implication of law, from the delivery of the goods by the plaintiffs, and their possession by the defendant ? On this subject the decisions are conflicting, but I think the weight of authority, as well as the true and logical effect of the various acts of the parties, is to leave the parties to stand upon the rights and obligations resulting from a delivery and possession of the goods. (Willson v. Foree, 6 John. 110. Butts v. Collins, 13 Wend. 154. Camp v. Pulver, 5 Barb. 91.) Indeed I think the plaintiff might properly and preferably have prosecuted simply for goods sold and delivered, and allowed the rest of the transaction to come out as a matter of evidence. If he had done so, the order of proof would have
Wright, Gould and Hogeboom, Justices.]