Thompson v. Peck

• Decision Date: 26 September 1888
• Docket Number: 13,376
• Citation: 18 N.E. 16,115 Ind. 512
• Parties: Thompson et al. v. Peck et al
• Court: Indiana Supreme Court

18 N.E. 16

115 Ind. 512

Thompson et al. v. Peck et al

No. 13,376

Supreme Court of Indiana

September 26, 1888

From the Johnson Circuit Court.

The judgment is reversed, with costs.

G. M Overstreet, A. B. Hunter, R. M. Miller and W. H. Barnett, for appellants.

S. P Oyler, W. A. Johnson and Smith, Kellogg & Wells, for appellees.

OPINION

Mitchell, J.

This was an action in replevin to recover the possession of personal property, consisting of ready-made clothing of the alleged value of $ 5,000, of which the plaintiffs claimed they were the owners and entitled to the possession, and which they charged that the defendant wrongfully detained from them to their damage, etc.

The complaint was in three paragraphs, and while the second and third assumed to set forth the particular manner in which the defendants obtained possession of the goods in controversy they are nevertheless complaints in replevin, and in legal effect the same as the first paragraph.

It appeared that the plaintiffs were partners, doing a wholesale or jobbing business in the city of Syracuse, New York, under the firm name of W. S. Peck, Bro. & Co., while the defendants, Dalmbert & Sergeant, were conducting a general retail store at Edinburgh, Indiana. The latter firm became customers of the former in 1882, after which they purchased bills of goods varying in amounts several times each year, generally at the solicitation of one of the plaintiffs, who was the travelling salesman of the firm.

The evidence tended to show that the plaintiffs sold the defendants a bill of goods on the 24th day of July, 1884, amounting to $ 1,987, and that they sold them another bill in January, 1885, amounting to $ 1,824, another of $ 1,471.50 in July, 1885. For the bill sold in July, 1884, including some interest accrued on the account, the plaintiffs received three promissory notes, executed by the defendants, Dalmbert & Sergeant, payable in a bank in this State, for $ 666 each, dated the 27th day of March, 1885, due in two, three and four months, respectively. Two of these notes were subsequently paid. The other has not been paid. For the goods sold in January, 1885, three notes were executed by Dalmbert & Sergeant, dated November 1st, 1885, due in two, three and four months, respectively. The bill sold in July, 1885, remained in an open account. On the 25th day of November, 1885, Dalmbert & Sergeant, finding themselves in failing circumstances, and unable to pay their debts, after having the day previous given a chattel mortgage on their stock, and otherwise secured several of their creditors, made a voluntary assignment under the statute for the benefit of all their creditors, the appellant Thompson being named in the deed as assignee.

They were indebted to the plaintiffs at the time of the assignment, their indebtedness being evidenced by one of the notes given in settlement of the July, 1884, purchase, and by the three notes given in settlement of the purchase made in January, 1885, and by the open account for the goods purchased in July, 1885. The plaintiffs asserted the right to recover all of the goods sold by them to Dalmbert & Sergeant, on either of the dates above mentioned, so far as such goods remained in the latter's possession, and were capable of identification at the date of the filing of the complaint, viz., December 5th, 1885, on the ground that the purchasers were hopelessly insolvent, and had no reasonable expectation of being able to pay, and did not intend to pay, for the goods at the time they were purchased. It appeared that the sheriff, in obedience to the command of the writ of replevin, had seized all the goods sold by the plaintiffs to Dalmbert & Sergeant which remained unsold at the time the suit was commenced. The goods seized were of the value, as found by the jury, of $ 1,980. The evidence showed that of the goods seized, $ 261 worth were of the July, 1884, purchase, $ 538.54 of the January, 1885, purchase, and the residue of the last bill, purchased in July, 1885.

A jury having returned a verdict in favor of the plaintiffs, judgment was given accordingly, over a motion for a new trial. The verdict and judgment affirmed the right of the plaintiffs to recover the unsold goods remaining of each and all the several purchases as above described, notwithstanding the amount of the first two purchases had been settled by the giving of notes by the purchasers, payable in bank, two of which notes had been fully paid, with interest, and notwithstanding there had been no offer to return either the notes given, or the money paid, before the bringing of the suit in replevin.

The appellants contend: (1) That the evidence wholly fails to show that either of the purchases was made under such circumstances as justified a rescission of the contract and a reclamation of the goods; and (2) that even if it be conceded that the goods were fraudulently obtained, with a design not to pay for them, still replevin can not be maintained to recover those embraced by the first and second purchases, without first offering to return the money paid and the notes executed in settlement of the several accounts.

The question embraced in the last proposition arises both on the evidence and upon an instruction given by the court, which instruction was to the effect that if a purchase of goods be effected by means of fraud, the vendor does not, as against the...