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purchased the acid from A. through his broker, who received the delivery order, and indorsed it, making the acid specially deliverable to himself, and then delivered the order to B. for the purpose of his inspecting the acid. B. then sent the order to the plaintiffs, and, by his false representation that he had purchased the acid on his own account, obtained an order from the plaintiffs making the acid deliverable to his order. The plaintiffs also forwarded the goods, which B. then pledged for money bona fide advanced to him by the defendant. Held, in an action of trover to recover the goods, that the plaintiffs and B. had never stood in the relation of vendor and vendee; and, as B. had obtained the order for delivery by fraud, the plaintiffs were entitled to recover.1

15. More especially will the rule above stated be applied in favor of the vendor, where, in addition to the fraud of the purchaser, the sale and delivery are made upon condition of immediate payment. Thus, in an action to recover possession of a quantity of corn purchased by the defendant; it appeared that the defendant assured the vendor's agent, that the money to pay for the corn was arranged for, and that the vendor could have it as soon as the corn was delivered on board a ship. Upon that condition the corn was delivered, but the defendant on various pretexts avoided payment for several days, and the vessel sailed for Europe, with the corn on board; the defendant, on the day she sailed, executing a general assignment to trustees for the benefit of creditors, and being insolvent at that time, and at the time of the purchase, and having obtained advances upon the bills of lading, and applied them to other purposes. Held, both on the ground of fraud, and of a conditional sale and delivery, the plaintiff was entitled to recover.2

16. But, somewhat in conflict with cases already cited, it has been held that a sale procured by fraud is not absolutely

1 Kingsford v. Merry, 38 Eng. L. & Eq. 582. See 34 Ib. 607.

2 Van Neste v. Conover, 20 Barb. 547.

void, but the seller may or may not avoid it at his option;1 that a party who would disaffirm a fraudulent contract must act promptly upon discovering the fraud, and return or offer to return whatever he has received upon it, if of any value, in order to recover the property fraudulently purchased of him; that he must rescind the contract in toto, and thus place the purchaser in the position he was in before the sale.2 And this rule has been applied to the case of a note given for the price. Thus the plaintiff sold to A. a quantity of stoves, and received in payment two notes made by B., for a part of the amount, and the note of A. for the balance; and A. subsequently sold part of the stoves to bonâ fide purchasers, and the defendant purchased the remainder. The plaintiffs then applied to B., and obtained four additional notes made by him, for a part of the purchase-money, and prosecuted two of them to judgment; and, after demanding the stoves of the defendant, brought this action to recover possession, on the ground that the purchase by A. was fraudulent; but without rescinding the contract, or returning or offering to return the notes. Held, the action could not be maintained.3 So, where the notes of the purchaser have been received in part payment, it has been held not sufficient to produce them at the trial, and offer to cancel them. (a)

The Mattcawan, &c. v. Bentley, 13 Barb. 641.

2 Wheaton v. Baker, 14 Barb. 594; Denendorf v. Beardsley, 23 Barb. 656.

8 Wheaton v. Baker, 14 Barb. 594. The Matteawan, &c. v. Bentley, 13 Barb. 641.

(a) The plaintiff being desirous to dispose of his interest in certain buildings, trade, and stock, in which trade he was engaged with the defendant, pending a treaty between them for the purchase by the defendant, the latter falsely and deceitfully represented to the plaintiff, that he was about to enter into partnership in the same trade with other persons whose names he would not disclose, and that those persons would not consent to his giving the plaintiff more than a certain sum for his interest; whereas, in truth, neither A. and B., with whom he was then about to enter into partnership, nor any other intended partners of his, had refused to give more than that sum, but had then agreed with the defendant that he should make the best

17. In conformity with the rule above stated (p. 13) as to false representations made by the vendor; in case of fraud on the part of the vendee, where the purchase was made by an agent, the plaintiff must show, not only that the purchaser was insolvent at the time of the purchase, but that he or his agent, or both, knew of such insolvency. Hence the declaration, of the agent to third persons, made while acting for his principal and within the scope of his authority, and going to show such knowledge on the part of both principal and agent, are proper evidence. So, in an action for deceiving and defrauding the plaintiff by obtaining property from him without paying for it, under pretence of a purchase, and upon false representations as to the solvency of the purchasers; it is proper to submit it to the jury to determine, upon the evidence, whether the representations alleged were made; and whether, if made, they were false; and,

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terms he could with the plaintiff, and would have given him a larger sum, and in fact the defendant charged them with a larger price in account for the purchase of the plaintiff's interest. Held, an action on the case did not lie for this representation, for it was either a mere false representation of another's intention, or at most a gratis dictum of the buyer, upon a matter which he was not under any legal obligation to the seller to disclose with accuracy, and on which it was the folly of the seller to rely. But that, at any rate, the count was bad, in not showing that the plaintiff had been damaged by such false representation; inasmuch as it was not alleged that the other intended partners of the defendant would have bid at all without him, or that he would have joined in giving the additional price. Vernon v. Keys, 12 East, 632; 4 Taunt. 488. See Cary v. Hotailing, 1 Hill, 311.

It has been held, that, where a vendee, who has made a false and fraudulent misrepresentation, obtains by means of it possession of a chattel from a vendor, who intended to transfer both the property and the possession; the property vests in the vendee until the vendor has done some act to disaffirm the transaction; and therefore, if before the disaffirmance the fraudulent vendee has assigned or transferred the chattel to an innocent transferee, the title of such transferee is good against the vendor.

if false, whether they were made with intent to defraud and deceive the plaintiff. Such a charge is equivalent to a direction that it is necessary there should have been a scienter.1 (a)

18. Somewhat analogous to the case of property obtained by fraud, is that of property transferred to the lender of money upon usurious interest. Upon this subject it is held, that where, in an usurious contract, the delivery of personal property by the borrower to the lender is a part of the transaction, the possession of such property by the lender is tortious from the beginning, and trover will immediately lie against him at the suit of the borrower without a demand or other evidence of a further act of conversion. It is said, the law regards everything done by a borrower to obtain money upon usuri1 Armstrong v. Tuffts, 6 Barb. 432.

(a) An action for a fraudulent representation of the circumstances of one A. was referred to an arbitrator, who found, that the defendant had omitted to state to the plaintiff a certain debt which A. owed him; wherefore the defendant did not give a fair representation of what he knew concerning the credit of A., but in what he said he did not mean to hold out any inducement to the plaintiff to trust A.; and acquitted the defendant of all collusion with A., and of all premeditated fraud, with a view to benefit himself at the plaintiff's expense, and of any intention, at the time of making the representation, of withdrawing his credit from A.; and awarded in favor of the plaintiff. Held, such award was bad; as in substance it acquitted the defendant of any fraud or intention to deceive. Ames v. Millward, 2 Moore, 713.

It has been held, that the vendor of goods, which have not been paid for according to agreement, may lawfully regain possession of them, as against the assignee in bankruptcy of the vendee, by a purchase in the name of a third person at a greatly reduced price. Thus the defendant sold goods to A., to be paid for by a bill at two months, and, not being able to obtain it, and doubting A.'s solvency, he employed his broker to repurchase them in his own name, which was done, although at a great loss. A. afterwards became bankrupt, without knowing that the goods had been repurchased by the broker on account of the defendant. Held, an action of trover did not lie by the assignees of A. against the defendant, as there was no fraud on his part. Harris v. Lunell, 4 Moore, 10.

ous terms as involuntary, and the result of constraint and compulsion.1 And, where a usurious loan was connected with the sale of real property by the lender to the borrower, and the latter filed a bill in chancery to rescind the purchase, on the ground of fraudulent representations by the lender, and the bill was dismissed with liberty to bring another suit upon different grounds; held, that the borrower might bring trover for personal property transferred by him as a part of the usurious contract.2

19. In further illustration of the connection between contract and tort, it has been said, that one who enters upon land under a contract of purchase, but afterwards fails to make payments according to the contract, and disavows all intent to make them, is as effectually a wrongdoer, as if his original entry had been without color of right.3 So one entering upon land under an agreement with the husband of the tenant for life, and holding over after her death, is with respect to the remainder-man a mere trespasser.1

20. A similar principle has been applied, where a contract relating to the temporary possession of property has been violated by the bailee; in which case the sale terminates the bailment, and the vendor may maintain an action of trover for its value. In other words, the contract of bailment as well as sale may give rise to a claim as for a tort or wrong. (a) Thus the owner of cattle leased them with a farm for four years, under an agreement that, at the expiration of the four years, the lessee might either return the cattle or pay a stipulated price for them; and the lessee sold the cattle before the four years expired. Held, such sale determined the lessee's right of possession, and the owner might maintain trover

1 Schroeppel v. Corning, 5 Denio, 236. 2 Ibid.

* Per Cowen, J., Fuller v. Van Geesen, 4 Hill, 171.

4 Williams v. Caston, 1 Strobh. 130.

(a) See Carrier-Innkeeper-Conversion.

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