26 A. 196 | R.I. | 1891
This is an action of replevin to recover goods which the plaintiff's allege that the defendant fraudulently obtained from them under the guise of contracts of sale. The only goods with which we are concerned in the present inquiry are those obtained on September 25, 1891. For these the defendant paid the plaintiffs $50 in cash, and also gave them certain notes. The plaintiffs returned these notes to the defendant before bringing the suit, but they retained the money, claiming at the trial, that the goods replevied were less in amount than the goods obtained from them by $100. The court below instructed the jury that if the plaintiffs elected to rescind the contract of sale of September 25, 1891, they should have returned both the money and the notes before suit, and that having failed to return the money, they could not recover the goods. The plaintiffs excepted to this instruction and now petition for a new trial on the ground that it was erroneous.
There are undoubtedly numerous cases which support the instruction. We have no disposition to find fault with the application of the rule to cases of executory contracts of sale, in which a party seeks to rescind the contract on the ground of the failure of the other to fulfill his part of the contract, and which it is said in Duval Iglehart v. Mowry,
Two reasons have been stated for the rule. One is the protection of the vendee. With reference to this, it may be said that while the substantial rights of the fraudulent person who is proceeded against should, undoubtedly, be preserved, the person who has been deprived of his property by fraud under the guise of a contract of sale ought not to be defeated, delayed or embarrassed, by technicalities, or useless ceremonies. The fraudulent vendee is in no position to demand anything more than protection, that the vendor at the same time that he obtains justice shall do justice. A return or tender of the consideration, especially when it consists merely of money or promissory notes or like securities, before the bringing of the suit is not necessary to the protection of the vendee, since the court in which the action is pending can compel such return so far as may be necessary to do justice to the vendee, by making it a condition of its judgment, or by withholding its judgment, or staying execution on it, until a compliance with its order for such return.
The other reason, and perhaps the one more frequently assigned, for the rule is purely technical. It is that the vendor cannot rescind the contract and retain the money, because he cannot rescind it in part and affirm it in part, but must rescindin toto, if at all. Chief Justice Durfee, in Warner v.Vallily, above, clearly shows how fallacious is this reason, *215 when applied to cases of the avoidance of contracts of sale on the ground of fraud. He says: "It is here assumed that the vendor, if he keeps the money, can only keep it in part fulfillment of the contract. But is it necessarily so? The position of the vendor is that he has been swindled out of his goods under the guise of a contract, the contract and the money paid on it being a part of the artifice or contrivance by which the fraud was consummated. He keeps the money not as part fulfillment of the contract, but as part indemnity for the fraud which has been perpetrated on him, intending to deduct it in his action. The question is, will the law permit him to do so? Will it allow him to keep as indemnity what he received as consideration? We do not see why it will not, for ex hypothesi he was deceived into receiving it as consideration by the vendee, and therefore came under no obligation to him to keep it as such, nor still less to return it before bringing suit for the tort. The vendee, considering his fraud, gets all if not more than he merits when he is allowed a deduction pro tanto in damages."
In accordance with these views it has been held that in cases in which the vendor has received from the fraudulent vendee money as a part of the consideration, and in which he sues in trover for the recovery of pecuniary damages for the conversion of the goods obtained by the fraud, he may retain the money and allow it to go in reduction of the damages to be recovered. Warner v.Vallily,
Why should not the same reasons apply to an action of replevin as have been applied to an action of trover and which have led the courts to except it from the operation of the rule requiring that the consideration received by a vendor, if consisting of money or promissory notes or like securities, be returned or tendered before suit? A vendor cannot know before the service of his writ of replevin how many of the goods which have been fraudulently obtained from him can be recovered. Why should he not be permitted to retain the money or securities which he has received as an indemnity for the loss sustained by the fraud? Why should he be required, especially in a case like the one at bar, to surrender the money in his hands and take the chances of recovering it again in an action of trover from the fraudulent vendee? "A bird in hand is worth two in the bush." The $50 in cash which the plaintiffs have may be worth more to them than a judgment for many times that sum against the defendant. As has been stated, all that the defendant is entitled to is protection, and the court can afford him that by requiring the plaintiff to pay into court for the benefit of the defendant, whatever sum, if any, the plaintiff has received in excess of the value of the goods disposed of by the defendant prior to the service of the writ of replevin, either before rendering judgment, or by staying execution, until a compliance with its order for such payment. We are aware that in Wheaton v. Baker, 14 Barb. S.C. 594, the court makes a distinction, in this respect, between an action of trover and an action of replevin, and this distinction was recognized in our own case of Warner v. Vallily, above, but we fail to perceive any just ground for the distinction, at least in a case like the present. In Poor v. Woodburn et al.,
We are of the opinion that the court below erred in its instruction to the jury in the matter excepted to and that the plaintiffs' petition for a new trial should be granted.
Petition granted, no costs.