Traywick v. Keeble & Co.

| Ala. | Nov 15, 1890

McCLELEAN, J.

— The theory of the present action on the-part of plaintiffs is, that the property in controversy belonged to them. They claim that one Yeldell, being at the time insolvent,, and having-no intention of paying, nor reasonable expectation of being able to pay, for the goods, induced Keeble & Co., by false representations as to his ability and purpose to pay, to sell and deliver them to him ; that they, exercising the right which accrued to them from these facts, rescinded the sale, and revested the title in themselves; and that thereafter the defendant converted the property to his own use, to them damage in the sum claimed. Against the action proceeding on this theory, but two lines of defense were open to the defendant, it not being controverted that he appropriated the property to his own use; first, that no such fraud was committed by Yeldell in-the purchase from Keeble & Co. as entitled the latter to rescind the sale and reclaim the goods; and second, that notwithstanding the fraud and right to rescind and reclaim, he purchased from Yeldell for value and without notice, actual or constructive, of the fraud of Yeldell, or the claim of Keeble & Co. — Loeb & Bro. v. Flash Bros., 65 Ala. 526" court="Ala." date_filed="1880-12-15" href="https://app.midpage.ai/document/loeb--brother-v-flash-bros-6510671?utm_source=webapp" opinion_id="6510671">65 Ala. 526; Hornthall v. Schonfeld, 79 Ala. 107" court="Ala." date_filed="1885-12-15" href="https://app.midpage.ai/document/hornthall-whitehead-weissman--co-v-schonfeld-6512340?utm_source=webapp" opinion_id="6512340">79 Ala. 107; LeGrand & Hall v. Eufaula Nat. Bank, 81 Ala. 123" court="Ala." date_filed="1886-12-15" href="https://app.midpage.ai/document/legrand-v-eufaula-national-bank-6512625?utm_source=webapp" opinion_id="6512625">81 Ala. 123; Robinson v. Levi, Ib. 134: Wollner v. Lehman, 85 Ala. 274" court="Ala." date_filed="1887-12-15" href="https://app.midpage.ai/document/wollner--lowenstein-v-lehman-durr--co-6513244?utm_source=webapp" opinion_id="6513244">85 Ala. 274; Darby v. Kroell, 92 Ala.

The principles of law which obtain in a contest between a creditor on the one hand, and a purchaser from his failing debtor on the other, manifestly have no application here. The plaintiffs do not seek to subject the property sold by Yeldell to the defendant to the satisfaction of a debt they held against Yeldell, for, on their theory, they, have no debt against Yeldell. They do not claim that Yeldell sold his property to defendant to hinder, delay or defraud his creditors, and themselves among the number; but that Yeldell, having possession of their property, delivered to the defendant, and the iatter converted it to his own use. It is wholly immaterial what were Yeldell’s intentions in making this delivery. Whatever they were, whether to pay thereby an honest debt which he owed Tray-wick, or for a present money consideration, he had no right to make the alleged sale and delivery to the latter of property which did not belong to him. It is equally immaterial what motives actuated the defendant in coming into the possession of the property, and withholding it from plaintiffs, provided he knew, or might, with due inquiry, have known of plaintiffs’ claim; or whether he took the property in payment of a debt, or paid money for it. However fair the price the defendant paid for the goods, however good Yeldell’s intentions were in selling them to him in satisfaction of a debt or otherwise, he had no right to sell if Keeble & Co. had a right to rescind, and did rescind the original sale; and the defendant had no right to buy if he had notice, or could, with proper inquiry, have had notice of plaintiffs’ claim. On the other hand, if he had no such notice, and did not know facts which should have put him on inquiry, which, if diligently prosecuted, would have brought him to a knowledge of plaintiffs’ claim, there could be no recovery against him in this action, although it might appear ever so clearly that Yeldell’s purpose was to defraud his creditors, and that the defendant purchased from him for a cash consideration, in whole or in part, or even that the price paid was greatly less that the value of the property, provided he parted with a consideration of some value, as distinguished from a mere good consideration. Several of the charges requested by the defendant raised inquiries which would have been pex-tinent had the plaintiffs attacked the alleged sale by Yeldell to Traywick from the standpoint of a creditor of the former, and as being a fraud oxx them ixx that capacity, but which have no beaxing on the real issues in the case as pre'sented by the pleadixxgs arxd proof. Of this character are charges numbered 2, 4 axxd 5. They could serve xxo purpose in this case, but to coxxfuse and mislead the j ury, axxd each of thexn was properly refused.

As we have said, it was open to deiexxdant to defeat this action, by showing that he was a purchaser for value axxd without xxotice, either of the fraud practiced on Keeble & Oo., or of facts suíñcieixt to put him oxi inquiry which, if prosecuted, would have given him such notice. There was evidence adduced, which texxded to show he had actual notice of the fraud, axxd of Keeble & Oo.’s claim, and also that he knew of facts which should have excited his suspicions axxd induced inquiry. As either this actual notice, or knowledge of these suspicious facts, was sufficient to destroy his defense, which proceeded on the theory that he was a. purchaser for value, the charges requested, which claimed a verdict for him, should have negatived both these affirmative considerations, as if the jury believed either to exist the defense was xxot made out. — Loeb & Bro. v. Flash Bros., 65 Ala. 526" court="Ala." date_filed="1880-12-15" href="https://app.midpage.ai/document/loeb--brother-v-flash-bros-6510671?utm_source=webapp" opinion_id="6510671">65 Ala. 526; Hodges v. Coleman, 76 Ala. 103" court="Ala." date_filed="1884-12-15" href="https://app.midpage.ai/document/hodges-bros-v-coleman--carroll-6511955?utm_source=webapp" opinion_id="6511955">76 Ala. 103. On this principle, charges 1 and 6 were properly refused. Their tendency was to induce a verdict for defendant notwithstanding the jury might have believed that he had knowledge of facts suggesting and leading to inquiry which would have disclosed the fraud on plaintiffs, axxd their claim to the property.

The fraud perpetrated on the plaintiffs was in the original sale by them to Yeldell. Whether Traywick participated in that sale or ixot, he caix xxot hold the property, if his purchase from Yeldell was xxxade with notice of it, or of plaintiffs’ claim of the property. Charges 3 and 7 íxxade the defendant’s non-participation ixx Yeldell’s original fraud the basis of a right ixx Ixim to have the verdict go ixx his favor. The fault of the 8th charge requested by the defendant lies, in its requirement that the plaintiff should satisfy the jury that Yeldell made false representations and fraudulently concealed his condition, &c., when it was sufficient for the plaintiffs to show, in connection with the facts postulated, either false representations, or fraudulent concealment. — LeGrand v. Eufaula Bank, 81 Ala. 123.

We find no error in the record, and the judgment of the Circuit Court is affirmed.