Lacker v. Rhoades ( 1866 )

By the Court E. Darwin Smith, J.

The motion for a nonsuit as to the defendant Osman Bhoades, it seems to me, ought to have been granted. When the plaintiff rested, no cause of action was established as against him, and more clearly was this so when the testimony in the case was closed. Assuming that the firm of Ehoades and Post was insolvent when the whiskey in question was ordered by them, and also that it was purchased with a preconceived design not to pay for it, which is all that can be claimed, upon the evidence, I do not see any ground upon which to charge Osman Ehoades with the property or its value. The title to the whiskey undoubtedly passed to Ehoades and Post by the delivery to the carrier, and having the legal title to it they could transfer such title, as they clearly did to Osman Ehoades. The plaintiffs undoubtedly might have stopped the goods in transitu, and they might have rescinded the sale and reclaimed them in the possession of Ehoades and Post for the fraud, and they might have followed them into the hands of Osman Ehoades and Reclaimed them from him at any time, so long as they could find or identify them in his hands. It is, I think, well. settled that where there is fraud in a contract for the purchase of goods .but they are freely and voluntarily delivered, i)ie title passes to the vendee. (Stevens v. Hyde, 32 Barb. 171. 1 Denio, 74. 2 id. 38. 4 Paige, 537.) The case is otherwise if the possession is acquired by felony, tort or fraud. And when the possession is obtained-by delivery with intent to pass the property, the vendor may nevertheless rescind the contract and follow and reclaim the goods, so long-as he can identify them, until they have been transferred to a bona fide purchaser. (Id. 8 Cowen, 238. 20 Wend. 267.)

Osman Ehoades had at least the right of a general assignee of Ehoades and Post in respect to this whiskey. He was not liable for the goods on the basis of an unlawful taking and conversion of them. He took them by purchase or assignment. Trover could not have been sustained against him for the whiskey until after the plaintiff had elected to rescind! the contract of sale and had demanded the property. (Bliss v. Cottle, 32 Barb. 323.) If he had had the whiskey in possession at the time of such demand and had refused to deliver it, such refusal would doubtless have been evidence of a conversion of the property, and he could have heen compelled to respond for its value. This whiskey was sold on a credit of four months, and when the plaintiff called upon Osman Bhoades for payment, the credit had expired, and he had long previously sold the whiskey and, received and disposed of the proceeds. He had incurred no debt or liability, for the goods by contract or tort. When he took possession of the whiskey, he took title to.it from Bhoades and Post. He thereby acquired the title, defeasible for the fraud, at the election of the plaintiffs ; but as there was no tort committed in his taking or disposing of the whiskey, and the plaintiff had never demanded or attempted to reclaim the property while it was in the hands of Osman Bhoades, and it could have been followed or reclaimed in specie, they never became reinvested with the title to it, and never had any right of action .in respect thereto, as against Osman Bhoades. Upon this ground I think the complaint should have been dismissed, or a nonsuit granted as against him, Osman Bhoades, as moved for at the circuit.

[Monroe General Term, March 5, 1866.

A new trial should therefore be granted, with costs to abide the event.

Johnson, Welles and E. D. Smith, Justices.]