W. G. Ward Lumber Co. v. American Lumber & Manufacturing Co. , 247 Pa. 267 ( 1915 )

Opinion by

Mr. Justice Brown,

Under the testimony produced on the trial of this case the jury could not have avoided the finding that the W. E. McMillan Company had procured a carload of lumber from the plaintiff company by fraud and deceit. This rendered the contract voidable, and, upon discovery of the fraud, the right of the plaintiff was to disaffirm the contract and bring trespass against the company which had defrauded it. That company had transferred the lumber to the American Lumber & Manufacturing Company, and a further fact found by the jury is that the transfer to it was in consideration of pre-existing indebtedness due it by the W. E. McMillan Company. The contract between the appellee and the W. E. McMillan Company was an Ohio one, and there was proof that, under the law of that state, where a purchaser obtains goods fraudulently and the same are transferred by him to another in payment of a pre-existing debt, such precedent debt will not be a sufficient consideration to constitute the transferee a bona fide purchaser for value as against the owner from whom the goods were obtained by fraud. From the judgment entered on the verdict in favor of the plaintiff an appeal went to the Superior Court, which affirmed the judgment practically on the opinion of the court below, refusing a new trial and a motion for judgment n. o. v.: Ward Lumber Co. v. Am. L. & M. Co., 55 Pa. Superior Ct. 147. Orlady, J., speaking for the Superior Court, said: “In the opinion filed by the learned trial judge, Ford, J., refusing to grant a new trial and to enter judgment n. o. v. the questions involved in this appeal are fully reviewed and rightly decided. ■ The disputed facts in the case were clearly and adequately submitted to the jury, and the verdict was warranted by the evidence adduced in the trial.” We have been led to the same conclusion. At the oral argument we had some doubt as to the sufficiency of the evidence showing that the appellee had rescinded its contract with its fraudulent vendee, and that the appellant had notice of this. From our subsequent examination of the testimony we are of opinion that the question of the rescission of the contract wás fon the jury. L. B. Oehmichen, the treasurer of the defendant company, called as a witness by the plaintiff, in referring to a conversation which he had with some one representing it, testified as follows: “Q. — On or about July 31, 1908, did you have a telephone conversation with the W. G-. Ward Company, or somebody representing them? A.— Yes, sir. Q. — Do you remember with whom it was? A. — No, sir — somebody representing themselves as the Ward Lumber Company over the ’phone talked with me. Q. — Will you give us the substance of that conversation? A. — They told me that they had shipped the car to the McMillan Company, and they heard that the McMillan Company was in a failing condition, and asked if we would protect them and pay their bill. I told them we did not recognize them as a factor in the case, did not buy from them, and therefore could not pay them for the lumber we had bought from McMillan. Then they told me that they would try to stop delivery of the shipment. That’s all; that was the substance of the conversation. Q. — Did whoever talked with you insist that they would try to get the lumber if they could? A. — Yes, so they told me. Q. — Claimed it as their property? A. — No; they claimed they shipped it to McMillan. Q. — But they were going to reclaim it as their property? A. — They didn’t put it in that way to me. They shipped it to McMillan and McMillan was in a failing condition, and they wanted to find out if wé would protect them in the matter and pay their bill. Q. — And when you told whoever it was that you would not protect them, they said they would stop the car? A. — Yes, sir.”

As the opinion of the lower court upon which the Superior Court affirmed its judgment will appear in connection with this opinion, we need say nothing further in affirming the judgment of the Superior Court.

Judgment affirmed.