McPherren v. Homan ( 1896 )

Williams, J.:

It was very likely true, as the trial court held, that there was no proof in the case sufficient to establish the fact alleged in the complaint, that the flour was stolen by Smith from the plaintiff, If was at most a case of fraudulent purchase. In any event, the question whether the goods were stolen was not submitted to the jury, and the verdict was not based upon any such finding. It cannot, therefore, be sustained upon that theory. ■ The plaintiff alleged that the flour was stolen, but he also alleged that he was the owner and entitled to the possession of the flour; that lie had demanded possession thereof from the defendants, and that they had refused to deliver it to him. We think this was a sufficient pleading under which to permit the submission of the case to the jury, as the trial court submitted it, upon the question of a fraudulent purchase and the tona fides • of the purchasers — especially as the defendants in no way specir finally objected that the pleading was .not sufficient to permit such submission. We entertain some doubt as to whether there was. sufficient competent evidence to authorize a finding by the jury that there was a fraudulent purchase of the flour from plaintiff. However this may be, we are entirely satisfied that there was. proof upon which the jury should have found that the defendants were bona fide purchasers. The defendants testified to their entire good faith. It was found by the jury that they paid full value for the flour. They had no knowledge of the facts constituting the fraud in the purchase, if it existed, and we do not see that the facts and circumstances surrounding their purchase were such as to charge them with notice of such fraud. The defendants did.not know the person Lorn whom they purchased, and regarded the price asked as low and the purchase a good bargain. The man Ross, from whom the defendants claimed to have purchased, gave R. j. Dean & Co., a reputable business firm, as his reference, and the defendants inquired of R. J. Dean &' Co., who said it was all right. Ross told the defendants that he had purchased the flour by way of a trade. We think the facts were not sufficient to authorize a finding of the jury of bad faith on the part of the defendants in making the purchase of the flour.

Our conclusion is, therefore, that the judgment should be reversed and a new trial ordered, with costs of the appeal to the appellants to abide the event.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Judgment reversed and new trial ordered, with costs to the appellants to abide event.