Bach v. Tuch

• Decision Date: 10 March 1891
• Parties: BACH et al. v. TUCH.
• Court: New York Court of Appeals Court of Appeals

126 N.Y. 53

26 N.E. 1019

BACH et al.

v.TUCH.

Court of Appeals of New York.

March 10, 1891.

Appeal from supreme court, general term, first department.

Replevin by Elias Bach and others against Simon Tuch, as assignee for benefit of creditors of Rudolph Moeller, to recover goods sold by plaintiffs to Moeller. Plaintiffs claimed the right to rescind the sale on the ground of fraud. A verdict was directed for defendant, and judgment rendered thereon, which was affirmed by the general term. Plaintiffs appeal.

B. F. Einstein, for appellants.

Louis Marshall, for respondent.

PECKHAM, J.

I am inclined to think the plaintiffs gave sufficient evidence of the purchase of the goods with a fraudulent intent by the assignor of the defendant to entitle them to a submission of the question to the jury, were it not for the facts put in evidence regarding their election of an inconsistent remedy. The facts are that on the 27th of October, 1885, the plaintiffs sold and delivered to defendant's assignor goods and merchandise to the value of $1,166.10, and took his note in payment thereof, payable in four months from November 2, 1885. On the 21st of December, 1885, the defendant's assignor made an assignment to defendant for the benefit of the creditors of the assignor, and on the next day the plaintiffs commenced an action against the assignor to recover the purchase price of the goods so sold in October, notwithstanding the credit then given had not expired. The plaintiffs claimed the right to ignore the credit upon the ground that the defendant's assignor had procured the sale of the goods to him by virtue of a fraud. In an affidavit in the action, made to obtain an attachment, one of the plaintiffs stated that the assignor at the time he purchased the goods from plaintiffs had made certain representations (which he set forth in the affidavit) regarding the financial condition of the assignor, for the purpose of obtaining credit on such purchase, and that the plaintiffs relied on them, and were induced by their means to sell and deliver the goods to him on the credit asked for. It was further stated in the affidavit that such representations were false in every particular, and that the assignor knew they were false when he made them; that he had since then made a general assignment, and had given preferences to his wife and others, which were made to cover up his property, and remove it beyond the reach of his bona fide creditors; and that the preferences were fraudulent; and that he had thereby removed and disposed of his property with the intent to cheat and defraud his creditors. The action in which the attachment was sought, it is thus seen, was one which ratified the sale of the goods, but ignored the credit, and sought to recover the purchase price of the property sold. The attachment was granted, but it was subsequently vacated by the general term, and the suit to recover the purchase price of the goods sold was thereupon discontinued. After such discontinuance the plaintiffs commenced this action, in which they repudiate the sale, and claim the specific property which the assignor had obtained from them, and which they now claim is their property, and has been at all times, because the assignor, when he procured it from the plaintiffs, purchased it with the intent not to pay for it. The first suit ratified the sale of the goods, and sought to recover their purchase price, while this action repudiates the sale, and claims the title and ownership of the goods themselves, and seeks their recovery in specie. These are, of course, inconsistent attitudes, and constitute prima facie an attempted enforcement of inconsistent remedies. The plaintiffs show in their affidavit in the first action to obtain an attachment that they had knowledge of the facts constituting the fraud by which their property was obtained by the assignors. From that affidavit it appears that they knew that the representations made to them by the assignor were false, and, as they charged, were also fraudulent, and that they were made for the purpose of obtaining the property of the plaintiffs on credit without paying for it; and they knew, when they commenced the action, of the fact of the insolvencyof the assignor at the time he made his representations. With this knowledge they commenced an action which ratified the...