Kline v. Baker , 99 Mass. 253 ( 1868 )

Gray, J.

This action of replevin is brought by the seller of intoxicating liquors against a deputy sheriff attaching the same as the property of the purchaser. The plaintiff contends that the sales were induced by fraud of the purchaser and therefore passed no title to him ; and the burden of proving this proposition is upon the plaintiff.

The seller resided in Pennsylvania, and the purchaser in Illinois. The goods were sold in two lots, one in June and the other in August 1865, upon distinct orders sent by the purchaser to the seller. Although the first order was in accordance with terms of sale agreed on between the agents of the parties in Illinois, neither sale was complete until delivery of the goods. That delivery in each case was made to a railroad corporation in Philadelphia, which, in the absence of any agreement between the parties to the contrary, was in law a delivery to the purchaser. Bach contract of sale therefore was completed in Pennsylvania, and its validity must be governed by the laws of that state. Orcutt v. Nelson, 1 Gray, 536. Finch v. Mansfield, 97 Mass. 89. 2 Kent Com. (6th ed.) 458.

The laws of another state are not laws of this Commonwealth, which our citizens are bound to know, or of which our courts have judicial knowledge; but they are facts, of which both citizens and courts must be informed as of other facts. As foreign laws can only be known so far as they are proved, no evidence of them can be admitted at the argument before this court, which was not offered at the trial or otherwise made part of the case reserved. Knapp v. Abell, 10 Allen, 485. Bowditch v. Soltyk, ante, 138. When the evidence consists of the paro testimony of experts as to the existence or prevailing construe-Hon of a statute, or as to any point of unwritten law, the jury must determine what the foreign law is, as in the case of any controverted fact depending upon like testimony. Holman v. King, 7 Met. 384. Dyer v. Smith, 12 Conn. 384. Moore v. Gwynn, 5 Ired. 187. Ingraham v. Hart, 11 Ohio, 255. But the qualifications of the experts, or other questions of competency of witnesses or evidence, must be passed upon by the court; and when the evidence admitted consists entirely of a written document, statute or judicial opinion, the question of its construction and effect is for the court alone. Church v. Hubbart, 2 Cranch, 187. Ennis v. Smith, 14 How. 400. Owen v. Boyle, 15 Maine, 147. State v. Jackson, 2 Dev. 563. People v. Lambert, 5 Mich. 349. Bremer v. Freeman, 10 Moore P. C. 306. Di Sora v. Phillipps, 10 H. L. Cas. 624. And'if the evidence is uncontradicted, and will not support the action, it is the duty of the court so to instruct the jury.

By the law of Massachusetts, purchasing goods with an intention not to pay for them is of itself a fraud which will render the sale void and entitle the seller to reclaim the goods. Dow v. Sanborn, 3 Allen, 181. The only evidence, introduced at the trial, of the law of Pennsylvania upon this subject was the cases of Smith v. Smith, 21 Penn. State, 317, and Backentoss v. Speicher, 31 Penn. State, 324, as published in the official reports, by which it appears that, in the opinion of the supreme court of that state, there must be “ artifice, intended and fitted to deceive, practised by the buyer upon the seller,” in order to constitute such a fraud as will make the sale void; and that the buyer’s intention not to pay for the goods and concealment of his own insolvency is not such a fraud. These reports were competent, and, in the absence of all other evidence, conclusive proof, of the law of Pennsylvania. Gen. Sts. c. 131, § 64. Penobscot & Kenebec Railroad Co. v. Bartlett, 12 Gray, 244.

But the plaintiff introduced evidence that Burleigh, who' was either a partner or the manager of the business of Dore, the purchaser, represented to Sheble, the agent of the plaintiff, at the time of negotiating with him for the purchase of the first lot of liquors, and within ten days before sending the order for them to Philadelphia, that Dore had a farm worth ten thousand dollars, and other means amply sufficient to carry on his business, and that he always purchased for cash and did not owe an) man; and that these representations were false. This was clearly sufficient evidence of fraudulent representations intended to induce and in fact inducing the plaintiff to sell to Dore, or, in the language of the supreme court of Pennsylvania, “ artifice, intended and fitted to deceive, practised by the buyer upon the seller,” to warrant a jury in finding that the purchase made immediately afterwards on a credit of sixty days, as well as the subsequent purchase made before that credit had' expired, was fraudulent and passed no title. The learned judge therefore erred in ruling that upon the evidence the plaintiff could not recover, and in directing a verdict for the defendant. Nichols v. Pinner, 18 N. Y. 295, and 23 N. Y. 264. Hall v. Naylor 18 N. Y. 588. Reenie v. Parthemere, 8 Penn. State, 460. Seaver v. Dingley, 4 Greenl. 306. Wiggin v. Day, 9 Gray, 97.

J. Lathrop, for the plaintiff. J. D. Ball, for the defendant.

Exceptions sustained.