Farwell v. Hanchett

• Decision Date: 13 November 1886
• Citation: 9 N.E. 58
• Parties: FARWELL and others v. HANCHETT and others.
• Court: Illinois Supreme Court

9 N.E. 58

FARWELL and others

v.HANCHETT and others.¹

Supreme Court of Illinois.

November 13, 1886.

Appeal from appellate court, First district.

The instruction of the court that plaintiffs must prove a demand, in order to recover, was erroneous. Doane v. Lockwood, 4 N. E. Rep. 500. The appellate court held that as the jury found the property in the defendant Heller, and that a note given by defendant Heller in part payment was not tendered back till the trial, the error will not avail the appellants. Both positions are untenable. The first, because the jury found the property in the defendant in consequence of the court's instructions so to find, unless a demand was proved; the second, because. Doane v. Lockwood, supra, permits rescission and tender after the bringing of the action, and it can make no difference whether this is before or after the trial begins. Section 22, c. 119, Rev. St. Ill., permits judgment for plaintiff in replevin, if he ‘shall in the mean time have become entitled to the possession of the property,’ which may certainly be construed to include the time of trial. If a man buys on credit, not intending to pay for them, this is a fraud on the seller that entitles him to avoid the sale. Hennequin v. Naylor, 24 N. Y. 139;Byrd v. Hall, 41* N. Y. 647; Johnson v. Monell, Id. 655; Devoe v. Brandt, 53 N. Y. 462;Davis v. Stewart, 8 Fed. Rep. 803;Talcott v. Henderson, 31 Ohio St. 162;Powell v. Bradlee, 9 Gill & J. 220, 248, 278;Dow v. Sanborn, 3 Allen, 181;Burrill v. Stevens, 73 Me. 395;Oswego Starch Factory v. Lendrum, 57 Iowa, 573;S. C. 10 N. W. Rep. 900;Stewart v. Emerson, 52 N. H. 301;Donaldson v. Farwell, 93 U. S. 631;Bowen v. Schuler, 41 Ill. 192;Lockwood v. Doane, 107 Ill. 235.

These cases repudiate the old doctrine that the sale can be rescinded for fraud only, where induced by false representations of the purchasers; and hence the instruction of the court that plaintiffs must prove that defendant Heller ‘used means to deceive, and did deceive, them, and that he did not intend to pay for the goods when he bought them,’ is erroneous.

Where duplicate bills, copied from the sale-book, which are books of original entry, are offered, and are objected to generally, and not on the ground that these bills are secondary evidence, the case stands as if the books themselves had been offered. Stone v. Great Western Oil Co., 41 Ill. 85, 94, 95.

The commencement of a suit in assumpsit to recover the price of the goods, which is subsequently voluntarily dismissed, is not a ratification of a fraudulent contract. Peters v. Ballistier, 3 Pick. 495.

A demand, in such a case as this, is a condition precedent to bringing suit. Moriarty v. Stofferan, 89 Ill. 528. The property being duly in the custody of the sheriff, demand should have been made on him. Wells, Repl. § 368. In order that misrepresentations may vitiate a contract, the party making them must know their falsity, and use means to deceive. Walker v. Hough, 59 Ill. 375;St. Louis & S. E. Ry. Co. v. Rice, 85 Ill. 406. The misrepresentations must be untrue when made. Grier v. Puterbaugh, 108 Ill. 607;Holdom v. Ayer, 110 Ill. 448. Appellants, by bringing an action of assumpsit, affirmed the contract of sale, and could not afterwards replevy them. Kellogg v. Turpie, 93 Ill. 267. Appellants could not rescind the contract without first offering to surrender the note. They cannot rescind in part, and affirm in part. Kellogg v. Turpie, 93 Ill. 265;Bowen v. Schuler, 41 Ill. 192;Wolf v. Dietzsch, 75 Ill. 205;Smith v. Brittenham, 98 Ill. 197.

1. SALE-RESCISSION FOR FRAUD-REPLEVIN-BURDEN OF PROOF.

In an action of replevin by a vendor for goods sold, on the ground that the sale was procured by fraud, and has been rescinded by him, he has the burden of showing (1) that the vendee bought the goods levied on from him; (2) that the vendee practiced deceit, and deceived vendor; or (3) that vendee did not intend to pay for the goods when he bought them.²

2. SALE-DEMAND AND REFUSAL.

Where replevin is brought for fraud, and the jury find from the evidence that the defendant obtained the goods by a purchase based upon fraudulent representations a demand and refusal by the plaintiff previous to the action are unnecessary.³

3. REPLEVIN-RESCISSION OF SALE FOR FRAUD-RETURN OF CONSIDERATION AFTER SUIT BROUGHT.

Where plaintiff rescinds for fraud the contract under which he has sold goods, and fails to return the consideration, his action of replevin is premature; and although, under section 22 of the replevin act, (2 Starr & C.St. c. 119, par. 22,) he will be permitted to return the consideration after bringing the action, and thus maintain it, in case the fraud is admitted, he cannot do this when the fraud is contested, in which case his action fails as premature. Doane v. Lockwood, 115 Ill. 490, S. C. 4 N. E. Rep. 500, distinguished. ⁴

Flower, Remy & Gregory, for appellants.

Brandt & Hoffman, for appellees.

MAGRUDER, J.

This is an action of replevin, brought by the appellants against the appellees, in the superior court of Cook county, on December 12, 1884. The defendants below pleaded non cepit; non detinent; property in the defendant, Simon Heller; property in one Abraham Heller; and, as to the defendant Hanchett, who is the sheriff of Cook county, justification under an execution against Simon Heller in favor of Abraham Heller.

Simon Heller carried on business in Chicago, as a dry-goods merchant, from April 4, 1882, to December 9, 1884, on which latter date the execution aforesaid was levied upon his stock, and possession thereof was taken, by the sheriff. During this period, he was in the habit of buying goods from the plaintiffs, who were wholesale dry-goods merchants. On April 4, 1882, he executed and delivered to the plaintiffs a written statement, which contained the following language: ‘I, Simon Heller, * * * for the purpose of obtaining a credit with John V. Farwell & Co., of Chicago, Ill., for goods which I may now or hereafter purchase of them, do make the following statement and representations of my present true financial circumstances, wealth, and mercantile respectability, which said representations shall be the basis of my credit with John V. Farwell & Co., both for my present purchase, and for all purchases for and during the period of five years from this date; agreeing to immediately notify them of any material change in or of my business matters during the period above mentioned.’ The statement showed, at that time, assets, $9,150, and liabilities, $4,260. Among the liabilities was specified a debt of $2,700 to Abraham Heller. The property replevied consisted of various articles of dry goods, alleged to have been bought of the plaintiffs during the period aforesaid.

The jury before whom the case was tried returned a verdict finding ‘title to property in Simon Heller, subject to the execution in favor of Abraham Heller in the hands of the defendant Hanchett, as sheriff.’

Counsel for appellant say in their brief: ‘In this court appellants claim error only in giving two instructions for appellees, the third and seventh.’

The seventh instruction is as follows: ‘The jury are instructed that the burden of proof is on the plaintiffs to prove, by a preponderance of the evidence, that Simon Heller bought the goods in controversy from them; that he used means to deceive, and did deceive, them; and that he did not intend to pay for the goods when he bought them.’ This instruction announces three propositions: The first is that the goods replevied must have been goods which were purchased by Simon Heller of the plaintiffs. Evidence was introduced tending to show that Heller bought goods of other parties besides the plaintiffs, between April, 1882, and December, 1884. If, among the goods replevied, there were articles that had been purchased of such other parties, plaintiffs had no right to replevy them. It was therefore a proper question to be submitted to the jury whether the particular goods taken by the plaintiffs under their writ had been sold to Heller by them, or by somebody else. Hence there is no error in the first proposition. The second proposition is that the defendant Heller must have used means to deceive plaintiffs, and that such means must have had the effect of deceiving them. The theory of the plaintiffs was that they were induced to sell these goods to Heller by fraud on his part, and that, in consequence of such fraud, they were entitled to rescind the contract of sale, and bring replevin. In order to establish the fraud charged, it was incumbent upon the plaintiffs to prove that the defendant used ‘means to deceive or circumvent them.’ The second proposition announces no other doctrine than that laid down by us in the following cases: Walker v. Hough, 59 Ill. 375;St. Louis & S. E. Ry. Co. v. Rice, 85 Ill. 406;Grier v. Puterbaugh, 108 Ill. 602. The third proposition is that it must appear that defendant did not intend to pay for the goods when he bought them. We held in Bowen v. Schuler, 41 Ill. 192, that ‘a purchase of property, made with the intention not to pay for it, is a fraud, as between the buyer and the seller, and passes no title.’ Hence we see no error in the third proposition.

But appellants complain that the seventh instruction required them to prove, in order to sustain their charge of fraud, not only that the defendant did not intend to pay for the goods when he bought them, but also that he used means to deceive, and did deceive, them; in other words, that they were required to prove both the second and third propositions above indicated, when the proof of either without the other would have been sufficient. It may be true, as claimed, that, in order to rescind a sale for fraud, it is not necessary to show that the sale was induced by the false representations of the purchaser, if it be established by the acts of the purchaser, or otherwise be made to appear, that he did not intend to pay for the goods when he...