Thaxter v. Foster , 153 Mass. 151 ( 1891 )

Field, C. J.

As we understand the bill of exceptions, no exceptions were taken to any rulings or refusals to rule upon any questions of law arising at the trial upon the second count of the declaration. Whether the second count sets out in any intelligible manner any cause of action, either in contract or in tort, is also a question of law not raised in the Superior Court or in this court. There is, therefore, no question of law before us relating to the second count.

The first count is in the nature of trover, for the conversion of a car-load of corn containing about seven hundred bushels, and two and one quarter tons of bran. Nothing is said in the exceptions about the bran. If the sale of the corn by the plaintiffs to Cousins was originally on condition that the title should not pass until the corn was paid for, an unconditional delivery of the corn to Cousins with the intention of passing the title would be a waiver of the condition. Freeman v. Nichols, 116 Mass. 309. If the delivery was procured by the fraud of Cousins, the plaintiffs on discovering the fraud could rescind the transaction, and reclaim the corn, so far as it could be identified, provided it had not passed into the hands of a bona fide purchaser for value, who had no notice or knowledge of the fraud. The fact that the plaintiffs delivered the corn to Cousins with the intention that he should grind it into meal, and sell it to his customers, would not prevent rescission on the ground of fraud, although it might be inconsistent with any theory that the plaintiffs delivered the corn to Cousins on condition that it should not become his property until paid for in money. In the sale and delivery of merchandise procured by fraud, it is generally the intention of the parties that the title pass to the vendee; but because of the fraud, the vendor can, if he chooses, on discovering the fraud, avoid the sale and delivery, notwithstanding this intention, because in the whole transaction he has been deceived by the vendee. The judge who tried the case apparently applied the law relating to a waiver of the condition in the case of a conditional sale arising from the vendor’s delivering the merchandise without any condition, to a delivery procured by the fraud of the vendee, without noticing that, by reason of the fraud, the plaintiffs could avoid the effect of such a delivery by rescission. In this, we think, there was error.

The defendant as attaching creditor was not a purchaser for value. Whether he became a bona fide purchaser for value, without knowledge of the fraud, by reason of the “ assignment or bill of sale,” we are unable to determine from the meagre statement of facts contained in the exceptions. The law on this subject has been recently considered in Goodwin v. Massachusetts Loan & Trust Co. 152 Mass. 189. If the defendant is liable to the plaintiffs in trover, he is of course liable only for the value of the merchandise which came into his possession, and which can be identified as the merchandise, or a part of the merchandise, sold and delivered to Cousins by the plaintiffs. We do not know from the exceptions whether the meal delivered to the defendant was wholly produced from the corn sold by the plaintiffs, or from that corn interminged with other corn, or whether the meal from that corn bad been intermingled with.meal produced from other corn, and we do not consider it desirable, on the indefinite statement of facts contained in the exceptions, to attempt now to state the law upon this part of the case.

As the second count is alleged to be for the same cause of action as the first, the verdict on the second count must be set aside, and the exceptions sustained. So ordered.