Chambeblin v. Fuller

• Decision Date: 20 June 1887
• Citation: 9 A. 832,59 Vt. 247
• Parties: CHAMBEBLIN and another v. FULLER.
• Court: Vermont Supreme Court

9 A. 832

59 Vt. 247

CHAMBEBLIN and another

v. FULLER.¹

Supreme Court of Vermont.

June 20, 1887.

Exceptions from Caledonia county.

Replevin for certain goods. Plea, general issue. Trial by jury, December term, Caledonia county court; Ross, J., presiding. Verdict and judgment for plaintiff. Exceptions by defendant.

It appeared that Hosea Welch, 2d, was a country merchant in Groton, and had been for about 40 years; that in the fall of 1881 his cousin Hosea Welch, Jr., one Almon Clark, and Henry C. Glover were holden as sureties for him for several thousand dollars; that Glover became alarmed, and, together with Clark, consulted a lawyer as to the best course to be taken, and it was learned that a mortgage would not be good in insolvency unless it had subsisted for four months; that in October, 1882, "Welch, 2d, went to Boston, and there purchased, at various places, goods amounting to about $2,400; that, in the November following, Clark and Welch, Jr., who had taken a mortgage covering real and personal estate in November, 1881, took possession of all the goods in the store under the mortgage and an assignment of Welch, 2d; that soon after local creditors filed their petition in the court of insolvency against Welch, 2d, upon which he was duly adjudged an insolvent debtor; that the creditors elected the defendant the assignee of the insolvent estate, and on December 12, 1882, a deed of assignment was sent to him. It was claimed that the two Welches were acting in concert with Clark and Glover, in order that the goods might be got into the hands of Welch, 2d, so that the sureties might take possession of them as they did under the mortgage. It also appeared that the mortgage was executed to cover property then in being, and also that which might be acquired in the future, and that it was antedated nearly 30 days, and was left at the town clerk's office, with instructions not to record it. The plaintiffs made demand of the messenger, and the keeper under him, for the return of the goods pending the appointment of the assignee, and afterwards replevied the goods in question.

Ide & Stafford and S. C. Shurtleff, for plaintiffs.

A defrauded seller does not lose the right to rescind because the buyer has incurred expenses with respect to the property in carrying out a fraud, nor is it necessary that the seller should make good such expenses, even though he receives an advantage from them by rescission. Benj. Sales, (4th Amer. Ed.) § 649, note; Guckenheimer v. Angevine, 81 N. Y. 394.

The possession of the messenger was the possession of the assignee. The assignee's title relates back to the date of filing of the petition of insolvency. R. L. § 1820. The messenger holds the property until the assignee takes formal possession of it, solely for the assignee, and if he holds it wrongfully it is the assignee who holds it wrongfully through him. But in this case the assignee ratifies the acts of the messenger, and claims title to the goods in question. Tripp v. Leland, 42 Vt. 487; Sprague v. Clark, 41 Vt. 6.

Bates & May, T. R. Giordan, and J. P. Lumson, for defendant.

The jury should have been asked to say whether the representations would have been likely to deceive a man of common prudence, and not whether it deceived the plaintiffs. Gregory v. Schoenell, 55 Ind. 101; Gunnison v. Bancroft, 11 Vt. 491; Pasley v. Freeman, 3 Term R. 54; Pratt v. Philbrook, 33 Me. 17; Sheple v. Page, 12 Vt. 519. They must be made to influence the plaintiff's conduct. Byard v. Holmes, 34 N. J. 296; Tryon v. Whitmarsh, 1 Mete. 1; Comins v. Coe, 117 Mass. 45; 1 Benj. Sales, §§ 637, 694, and notes; Phillip v. Gallant, 62 N. Y. 256. Representations must be made with the intent to deceive. Weatherford v. Fishback, 3 Scam. 170; White v. Jones, 38 Ill. 160; Benton v. Pratt, 2 Wend. 385; Pratt v. Philbrook, 33 Me. 17; Jordan v. Osgood, 109 Mass. 457. The mere appointment of a person to the office of assignee gives him no control over the insolvent's property. Such is the rule laid down in Goss v. Cardell, 53 Vt. 447. The title of the assignee is entirely technical, and is created solely by statute. In re Brainerd, 56 Vt. 495. The plaintiffs should have returned the money paid for freight, and should have submitted the question in proper form to the jury. The party rescinding must put the other in statu quo by an entire surrender of possession, and of everything he has obtained under the contract. Voorhees v. Earl, 2 Hill, 293; Bish. Cont. 203; Chit. Cont. 680; Shaw v. Barnhart, 17 Ind. 186.

TAFT, J. 1. We do not understand that the question of demand, made upon trial, was whether one was necessary to enable the plaintiffs to maintain the action, except as bearing upon, and a part of, the question of a rescission of the contract; and the real question presented by the exceptions is whether evidence of a demand of the goods, made upon the messenger or the keeper under him, was sufficient. We hold that it was. The goods were in possession of the messenger of the court of insolvency, awaiting the appointment of an assignee. The insolvent had no power over them, and could not surrender them if demanded of him. Except as against the plaintiffs, the messenger was the only person who had any right to the control or custody of the goods. We think a demand made of him, or the keeper under him, was a proper one. While the messenger had the goods, we think he was the only person against whom an action of replevin could have been maintained, and, if an action would lie against him, we think a demand of him would be sufficient. In Bussing v. Rice, 2 Cush. 48, the action was replevin for goods fraudulently obtained by the insolvent, brought directly against the messenger, and the action was maintained without a demand.

2. Was the contract seasonably rescinded? When a party has been defrauded in the sale of goods, and desires to rescind the contract, he must do so as soon as he discovers the fraud, and is entitled to a reasonable time in which to do it. Tilton Safe Co. v. Tisdale, 48 Vt. 83. The request to charge upon this point was that the plaintiffs could not rescind at the time they undertook to do so, upon conceded facts of the case. This was asking the court to treat the question as one of law. We do not find in the exceptions any facts stated which would justify the court in so doing. If the goods were obtained by fraud under the form of a contract, the plaintiffs had the right to rescind. Whether they acted with reasonable promptitude, as soon as they discovered the fraud, was a mixed question of law and fact, proper to submit to the jury. It was submitted, and no exception taken to the charge as given. We have no occasion, therefore, to examine the charge on that point.

3. The defendant objected to the testimony of Bridgeman as to the declarations of Welch, Jr., until it was shown that the latter was the agent of Welch, 2d. There was no error in this, if there was testimony in the case tending to establish the agency, although the latter was given after the testimony of the declarations. The order in which evidence is introduced is within the discretion of the court. The testimony of both the Welches tended to show that Welch, 2d, sent Welch, Jr., to the plaintiffs to obtain the goods in question upon the credit of the former. This testimony tended to establish the agency, and made the evidence of the declarations admissible, and the latter, therefore, was legitimately in the case. The defendant now claims that the question should have been submitted to the jury for them to find upon the evidence whether such an agency existed. No request was made to have the question submitted, no exception taken to the neglect to submit it. The question, therefore, does not arise upon the charge.

4. Was it error to show that Welch, 2d, could have bought goods for cash at 7 per cent. discount? He knew that goods could be bought for cash at a discount. He had money. He bought his goods on credit, and took his money home. We think this testimony admissible in support of the plaintiffs' claim that there was a conspiracy to buy the goods on credit, get them into the possession of Welch's sureties, not pay for them, and thus defraud the plaintiffs. Welch, 2d, was so connected with the transaction of the purchase of the goods that we do not think it was error to show the terms upon which he might have purchased them for cash.

5. The witness Bridgeman was the plaintiffs' salesman. Welch, 2d, applied for credit, and the plaintiffs, after an examination of Welch in reference to his financial standing, told Bridgeman to sell him goods, not exceeding $500 in value. We can see no error in admitting the evidence of that fact it was a part of the same transaction. The objection made to the testimony was that Bridgeman was told this not in the hearing of Welch, 2d. The latter must have known the result of his application for credit, for Bridgeman at once sold him on credit goods substantially to the amount named, viz., $486.50. No more direct way of imparling this information to Welch, 2d, could have been adopted.

6. The evidence tended to show a conspiracy claimed by the plaintiffs. The acts and declarations of one conspirator while the common design was being carried out, and in furtherance of it, was legitimate evidence against the others. Under this rule the testimony as to the acts and declarations of Welch, Jr., at the time of the purchase of the goods in question, and the testimony of...