Citation Numbers: 1 Hill & Den. 311
Judges: Cowen
Filed Date: 5/15/1841
Status: Precedential
Modified Date: 1/12/2023
Clearly, the proof tended to show that William Hotailing obtained the goods fraudu
The general doctrine is perfectly settled, that fraud avoids a contract of sale. (Bristol v. Wilsmore, 1 Barn. & Cress. 514. Kilby v. Wilson, 1 Ryan & Moody, 178. Root v. French, 13 Wendell, 570.) These were all cases of buying goods, with a preconceived design of not paying for them. In the first, Abbott, Gh. J. said, “ it prevented the property passing.” In the second, he said the same thing. And in Root v. French, Savage, Ch. J. states the same rule; but suggests a distinction as to the remedy, which was not in the case, and which, on more reflection, I am sure he would have repudiated. M'Carty v. Vickery, (12 John. R. 348,) ón certiorari from a justice’s court, decides that trespass will not lie in such a case; and even adds, that the property is changed. But no case is cited, nor any principle or analogy mentioned on which to rest either proposition. And there are numerous cases to the contrary. That the property does not pass, I add to the cases already cited, the following! Allison v. Mathieu, (3 John. R. 235, 8;) Van Kleef v. Fleet, (15 id. 147, 151;) Buffington v. Gerrish, (15 Mass. R. 156;) Abbotts v. Barry, (5 Moor. 98, 102;) Lupin v. Marie, (2 Paige, 169;) Andrew v. Dieterich, (14 Wendell, 31;) Mowrey v. Walsh, (8 Cowen, 238;) Tamplin v. Addy, (id. 239, note;) Putnam, J. in Badger v. Phinney, (15 Mass. R. 364;) Irving v. Motley, (7 Bing. 543; 5 Moor. & P. 380, S. C.) . All these cases hold, in terms, what was asserted by Dallas, Ch. J. in Abbotts v. Barry, viz. “The sale being'efiecteá by fraud, it is clear that a sale of this description works no change of property: The wines must be considered as remaining in the plaintiffs, as the original owners."
This being so, the civil remedies of the party defrauded" are dear, viz. trover, or replevin in the detinet; or trespass'
Even a contract under seal, executory or executed, may be treated as void, if fraud have been committed in procuring its execution.
That the owner’s mere manual delivery of goods, will not save the deliveree from the imputation of trespass, is illustrated in the case of a bailment obtained with an intent to deprive the owner of his property. The bailee is considered as the taker, and may be convicted of larceny, under an indictment alleging that he feloniously stole, took and carried away the property, contrary to the owner’s consent. The form of a sale, unless within the statute as to false pretences, saves him from the charge of taking in a criminal sense; but for all civil purposes, there is no delivery any more than in the case of bailment. In other
The degree of fraud, therefore, as whether it be indictable or not, is of no consequence on the question of nullity, when we speak in a civil sense. This was held in so many words, by the case of Irving v. Motley. That the fraud need not amount to the obtaining of goods under false pretences, within the statute, Park, J. took particular pains to show, in consequence of what counsel had sought to infer from a previous case in the decision of which he had participated; viz: Noble v. Adams, (2 Marsh. 366. See the opinion of Park, J. 5 Moore & Payne, 396.)
Root’s testimony should have been admitted. On questions of intent to defraud, other acts similar to the offence charged, done at or about the same time, or when the same motive to offend may reasonably be supposed to have existed as that which is in issue, are. admissible with a view to the quo animo. The case of fraud is among the few .exceptions to the general rule, that other offences of the accused are not relevant to establish- the main charge. The authorities are quite numerous, both in this and other courts. Most of them are cited in Cowen & Hill’s ed. of 1 Phil. Ev. note 333. p. 452; id. note 352, p. 485. In Irving v. Motley, (7 Bing. 543, 5 Moore & Payne, 380, S. C.) such evidence was received to establish the very kind, of fraud now iti question before us. The reason for its reception was given by Alderson, J. (Vid. 5 Moore & Payne, 398.) Rowley v. Bigelow, (12 Pick. 307,) is also to the same point, in all respects. (Vide also Jackson, ex dem. Bigelow, v. Timmerman, (12 Wendell, 299; M’Elwee v. Sutton, 2 Bail. 128; Lowry v. Pinson, id, 324.)
The result is, that the motion for a new trial should be granted, the costs; to abide the. event.
New trial granted.