Stevens v. Austin , 42 Mass. 557 ( 1840 )

Shaw, C. J.

The plaintiff being owner of a wagon, it was obtained from him by Foster, under the forms of a sale, but in fact, as the verdict has established, by misrepresentation and fraud. The defendant obtained it of Foster, with knowledge of the fraud. It is entirely clear, therefore, that the plaintiff had a right to maintain trover for it, and that without a demand ; because the possession, both of Foster and of the defendant, was wrongful and constituted a conversion. Bul. N. P. 44. Hurst v. Gwennap, 2 Stark. R. 306. Yates v. Carnsew, 3 Car. & P. 101. Thurston v. Blanchard, 22 Pick. 18.

Then the question is, whether the plaintiff was bound to tender back the note and money he had received, before he could bring his action. We think he was not: Not to the defendant; for the plaintiff had received nothing of him. Nor could the defendant raise the question, whether the plaintiff had made restoration to Foster, or not. It was res inter alios, with which the defendant had no concern, and was wholly irrelative to the issue between the parties.

Exceptions overruled.