Jordan v. Parker , 56 Me. 557 ( 1869 )

Appleton, C. J.

This is an action of replevin. The plaintiffs offered to prove that one Alonzo P. Moore, on the eleventh day of April, and on the first day of May, A. D. 1868, purchased a quantity of dry goods of the plaintiffs in Boston ; that, at the time of these purchases, Moore falsely and deceitfully represented the amount of his then present indebtedness and the amount of property he was worth, and his ability to pay for the goods thus purchased; that they were induced to sell said goods to him on credit, by means of said false and fraudulent representations; and that the plaintiffs, claiming they had a right, by reason of said fraud and deceit, to reclaim said goods, on the nineteenth day of May, 1868, replevied them from the defendant, who is sheriff1 of the county of Androscoggin, and who had attached and taken possession of them on writs of divers other creditors of Moore. This evidence the presiding Justice excluded.

The defendant is not a bona fide purchaser nor is he entitled to the rights of one. He represents only the rights of Moore. The goods were sold on credit. It does not appear that any note was given therefor. If no note was given, there was nothing to return to effect a recision. Obtaining goods by fraudulent pretenses is a tortious taking, and no demand is necessary to enable the person defrauded to maiiitain replevin for the goods. Ayers v. Hewett, 19 Maine, 281; Thurston v. Blanchard, 22 Pick., 18. One who, by the form of a sale, fraudulently obtains possession of chattels, with the intent never to pay for them, has no property which his attaching creditor can hold against the vendors. Buffington v. Gerrish, 15 Mass., 156; Wiggin v. Day, 9 Gray, 97.

Even if a note had been given, it would have been sufficient if the plaintiffs tendered it at the trial. Ayers v. Hewett, supra. Exceptions sustained.

Cutting, Walton, Dickerson, Barrows and Daneorth, JJ., concurred.