Albee v. La Roux

• Decision Date: 24 February 1923
• Citation: 119 A. 626
• Parties: ALBEE v. LA ROUX.
• Court: Maine Supreme Court

119 A. 626

ALBEE

v. LA ROUX.

Supreme Judicial Court of Maine.

Feb. 24, 1923.

Report from Superior Court, Cumberland County, at Law.

Action by Fred I. Albee against Timothy La Roux. On report from the Superior Court of Cumberland County. Judgment for defendant.

Argued before CORNISH, C. J., and SPEAR, PHILBROOK, DUNN, WILSON, and DEASY, JJ.

William A. Connellan and Harry H. Cannell, both of Portland, for plaintiff.

Benjamin L. Berman, of Lewiston, and Jacob H. Berman, of Portland, for defendant.

CORNISH, C. J. On report. This is an action of deceit brought to recover the value of certain hogs purchased by the defendant from the plaintiff. The false and fraudulent representations are alleged in the writ in these words:

"The defendant * * * did then and there falsely, deceitfully, and fraudulently assert and affirm to the said plaintiff that, if said plaintiff would deliver and transfer to him said hogs, he (the said defendant) would pay to the said plaintiff as purchase price of said hogs the sum of two thousand, one hundred and ninety-one dollars and five cents ($2,191.05) at a certain future time, to wit, three weeks, more or less, from said time. * * * "

The declaration further alleges a preconceived fraudulent design never to pay for said hogs, and it is upon this preconceived design that the plaintiff rests his cause of action in this case, relying upon Burrill v. Stevens, 73 Me. 395, 40 Am. Rep. 366, and Atlas Shoe Co. v. Bechard, 102 Me. 197, 66 Atl. 390, 10 L. R. A. (N. S.) 245.

In the former case, suit was brought upon a promissory note given by the defendant in consideration of a promise by the payee to deliver to him certain personal property at a future time. The defense set up was fraud, and the court stated the issue to be whether getting property by a purchase upon credit with an intention on the part of the purchaser never to pay for the same constitutes such a fraud as will entitle the seller to avoid the sale, "although there are no fraudulent misrepresentations or false pretenses." Although the authorities elsewhere are divided, the court held that such a doctrine should obtain here, and upheld the defense on the ground of fraud. The same principle was affirmed in Atlas Shoe Co. v Bechard, 102 Me. 197, 66 Atl. 390, 10 L. B. A. (N. S.) 245, supra, where an action of trover was sustained on the ground that, at the time the defendant purchased the goods in question, he had the intention never to pay for them. The sale was...