Schapin v. Auerbach

LEHMAN, J. (concurring).

I agree with the opinion of Mr. Justice DAYTON. Plaintiff claims that he bought the steamship tickets from defendants, and paid for them through Rosen, their agent. If his story is true, then the defendants concededly had no right to cancel the tickets. Defendants claim fb-t plaintiff purchased the tickets from Rosen, a ticket peddler, to whom they had sold the tickets upon credit, reserving the right to cancel them if Rosen failed thereafter to pay for them. If their story is true, then they have put the indicia of title for the tickets in the hands of Rosen, knowing that he intended to sell them. They have, therefore, been parties to a fraud upon plaintiff, and they must bear the loss.

In either case plaintiff has established his cause of action.