Williamson v. Russell

| Conn. | Nov 15, 1872

Seymour, J.

This motion for a new trial is clear and distinct in most of its statements of fact, but it fails entirely to disclose what questions of law were made, by counsel or ruled by the court. An interesting point of law which it appears ■ might have arisen at the trial has been discussed here by counsel and has been examined by us with considerable care; but that point did not necessarily arise in the Superior Court. That court may, for anything appearing in the motion, have decided that the plaintiff’s title was perfect as against the defendant; for the conversion of the property by the defendant is not found as a fact. Certain evidence tending to prove a conversion is stated, but the ultimate fact of conversion is not found affirmatively, and perhaps by the general finding of the issue for the defendant the proof of conversion was regarded as insufficient.

The fact of demand for the bags by the plaintiff upon the defendant is found proved, as is also the refusal of the defendant to deliver them, but it also appears that at the time of the demand the bags were not in the defendant’s actual possession, but were in the possession of one Gill, under an arrangement between the parties that they were to remain in Gill’s possession until emptied of the grain in them; and it further appears that the defendant has never been able to obtain possession of them. Under these circumstances we cannot say, as matter of law, that the Superior Court erred in finding that there was no conversion of the property of the defendant to 1ns own use. If the property was not at the time of the demand subject to the defendant’s order and under his control, his refusal to deliver is no conversion, and it does not appear but that his refusal was based upon these grounds.

If, however, the bags were under the defendant’s control, it certainly was inequitable for him to detain them under the circumstances disclosed in the motion. If the bags were really worth the $266 for which they were sold to Bennett & Eischer, and were bought by the defendant for $75, he must have bought them for an inadequate price, and when he found that the plaintiff had been defrauded of the property he ought to have accepted the plaintiff’s offer. By his refusal to do so he places himself in the situation of attempting to avail himself of the profits of Bennett & Fischer’s fraud. Such a refusal in connection with a purchase at an inadequate price would tend strongly to the conclusion that the defendant was not a bona fide purchaser, in the full measure of good faith ■required in cases of this kind to enable a party to hold property bought of a fraudulent vendee.

Eut the Superior Court has found, in view of all the facts before it, that the defendant purchased in good faith, and the rule appears now to be well settled in this country and in England that such a purchaser will be protected, notwithstanding the defective title of his vendor, when the goods were obtained by such vendor as a purchaser of them, by fraudulent representations. We feel bound by the finding to treat the defendant as a bond fide purchaser; there is nothing in the record which authorizes us as matter of law to hold the contrary.

It was urged in argument that, admitting the original purchase by the defendant to have been in good faith, yet under the circumstances the detention was inequitable and wrongful and good ground for the action of trover. If the conversion had been found this question might have arisen at the trial in the.Superior Court, but it does no't appear to have been brought to the attention of that court, and in our consultations we are not fully agreed as to the effect of such a refusal. We all concur in holding that the question is not before us in such shape that we have jurisdiction of it, and therefore, for the reasons before stated, advise no new trial.

in this opinion the other judges concurred.