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If the vendee, by a false representation, obtain possessionof goods with a preconceived design not to pay for them, no property passes (q); and whether he * had in fact formed such a design, is a question for the Jury (r).

(q) Earl of Bristol v. Wilmore, 1 B. & C. 514. The contract was for ready money; but the vendee obtained possession of the goods from the servant of the vendor, by delivering him a cheque upon a banker, which he represented to be as good as money, but in fact he had then overdrawn his account for some months, and payment was refused; held that the question, whether the sale was vitiated by fraud, depended on the fact whether the vendee obtained possession of the goods with a preconceived design not to pay for them. See Noble v. Adams, 7 Taunt. 59; Parker v. Patrick, 5 T. R. 175; Gladstone v. Hadwen, 1 M. & S. 517; R. v. Jackson, 3 Camp. 370; R. v. Freeth, supra, 564.

If a factor pledge goods consigned to him for sale as a security for a debt, and afterwards sell them to the creditor at the market price, but no money passes, the sale is void. Kuckein v. Wilson, 4 B. & A. 443. So if a factor barter the goods. Guerreiro v. Peile, 3 B. & A. 616. See also Guichard v. Morgan, 4 Moore, 36. (Drawing bills on a factor against a consignment does not authorize him to raise money by pledging them. Fielding v. Kymer, 2 B. & B. 639.) But see the late stat. 4 Geo. IV. c. 83. When A. having sold barley to a trader, and suspecting his solvency, re-purchased it by the agency of a third person, it was held to be no fraud upon the bankrupt laws. Harris v. Lunen, 1 B. & B. 390.

(r) Ibid.

goods, and reclaim then on account of fraud in the vendee, it must appear that deceptive assertions and false representations were fraudulently made in order to induce him to part with them. The mere insolvency of the vendee, and the liability of the goods to immediate attachment by his creditors, though well known to him, and not revealed to the vendor, is not sufficient to avoid the sale. Cross & al. v. Peters, 1 Greenleaf, 376. See also Buffington & al. v. Gerrish & al. 15 Mass. Rep. 156. Share & al. v. Anderson & al. 7 Serg. & Rawle, 43. Goods may be reclaimed from a vendee who represented himself to be of age, when he in fact was an infant, and afterwards availed himself of his minority to avoid payment. Badger v. Phinney, 15 Mass. Rep. 359. If one sells goods for cash, and the vendee takes them away without paying the money, the vendor may reclaim them even by force. Leedom v. Philips, 1 Yeates, 529. Where performance of the conditions of sale, and delivery of the goods, are understood by the parties to be simultaneous, possession acquired by artifice and deceit will not change the property. Harris v. Smith, 3 Serg. & Rawle, 20.

The vendee is not bound to communicate to the vendor any intelligence in his possession, relative to extrinsic circumstances (such, for example, as political events) which might influence the price of the commodity. Yet each party must take care not to do or say any thing tending to impose upon the other; and whether any imposition was practised by the vendee is a question for the jury. Laidlaw & al. v. Organ, 2 Wheat. 178. See Mr. Verplanck's Essay on Contracts. Pothier, De Vente, Nos. 233 to 241.]

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IV.

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IV.

Trover. By vendee of ship. Assignees.

The vendee of a ship, who claims by virtue of a sale by the master, in a foreign country, must not only prove the sale, but also that it was necessary, and that it took place under circumstances which would have induced the owner himself to have sold the vessel (s).

Where the assignees of a bankrupt sue in trover for goods which have been sold by the bankrupt, it is incumbent on them, where a stoppage in transitu is relied upon, to prove that the transitus was determined. Whether the transitus be determined or not, seems to be a question of law arising upon the special circumstances of the case. The object of proof in such cases, is an actual or construc* 1645 tive delivery (t) of the goods to the vendee, or his repre

(3) Hayman v. Molton, 5 Esp. C. 65. And see Abbott's L. S. 5. See also Cannan v. Meaburn, 1 Bing. 243, and the case of The Gratitudine, 3 Rob. 240; Reid v. Darby, 10 East, 143; Read v. Bonham, 3 B. & B. 147. [Phillips on Insurance, 407-412.] So as to the sale of a cargo. Freeman v. East India Company, 5 B. & A. 617.

(t) As by the delivery of the key of the warehouse in which they are deposited (Ellis v. Hunt, 3 T. R. 464; Copland v. Stein, 8 T. R. 199); by payment of rent for the warehouse (Hurry v. Mangles, 1 Camp. 452; Harman v. Anderson, 2 Camp. 243); the lodgment of a delivery-note with the wharfinger. (Ibid.) By a part delivery, where there is no intention to separate part from the rest (Slubey v. Heyward, 2 H. B. 504; Hammond v. Anderson, 1 N. R. 69; Ex parte Gwynne, 12 Ves. jun. 379; Stoveld v. Hughes, 14 East, 308); by delivery at the warehouse of the vendee's agent, where no ulterior or more complete delivery is contemplated (Leeds v. Wright, 3 B. & P. 320. And see 3 B. & P. 127; Scott v. Pettit, 3 B. & P. 469). As where they are sent to an agent, who under general orders from the vendor sends them to a packer (Ibid.); or by an act of ownership exercised by the vendee whilst the goods are in the bands of his agent, although they have not reached the place of ultimate destination (Wright v. Lawes, 4 Esp. C. 82); by delivery on board a ship chartered and fitted out by the vendee (Fowler v. McTaggart, cited 7 T. R. 442; 1 East, 552; 3 East, 396); by reaching an expeditor who holds them till he receives orders for their further destination. Diron v. Baldwen, 5 East, 175.

But such a delivery as would be sufficient in the absence of insolvency to vest the property in the vendee, is frequently insufficient to devest the right of stoppage in transitu. It seems to be a general rule, that so long as the goods are in the possession of one who is a mere agent, to forward them in order to give a more complete possession to the vendee, the transitus continues: as where they are delivered to a wharfinger to be forwarded to the vendee (Hodgson v. Loy, 7 T. R. 440; Mills v. Ball, 2 B. & P. 457; Smith v. Goss, 1 Camp. 282); although the wharfinger be employed by the vendee (Smith v. Goss, 1 Camp. 282; Oppenheim v. Russel, 3 B. & P. 42; and see Snee v. Prescott, 1 Atk. 245; Lickbarrow v. Mason, 1 H. B. 364; Hunt v. Ward, cited 3 T. R. 467; Feise v. Wray, 3 East. 93); or to a packer by order of the vendee (Hunt v.

sentative. The general nature of the evidence has already been adverted to (u).

PART

IV.

*A defendant in trover for goods deposited with him by the plaintiff, as his warehouseman, having received notice # 1646 from A. B., who claims property in the goods, to hold Trover. them on his account, is not estopped from setting up the Assignees. claim of A. B. by way of defence to the action (x).

But where a warehouseman, at the request of the vendor, gave a written acknowledgment to the vendee that he held the goods for the latter, it was held that he could not refuse to deliver them on the ground that by custom the property does not vest in the vendee till re-measurement (y).

The vendee may also recover the deposit or price, as Money had money had and received to his use, in all cases where the and received. contract is rescinded, either by the very terms of the original contract, or by consent, or by the act of the defendant; for then the consideration wholly fails (z) (1).

Ward, 3 T. R. 467); provided the vendee does not use the wharfinger's or packer's warehouse as his own, and that he contemplates an ulterior place of delivery (Wright v. Lawes, 4 Esp. C. 82; per Chambre, J. Richardson v. Goss, 3 B. & P. 127). So a delivery of plate to an engraver employed by the vendor (Owenson v. Morse, 7 T. R. 64); of goods to a common carrier (Stokes v. La Riviere, cited, 3 T. R. 466; Hunter v. Beal, Ibid.), so long as the lien of the carrier remains (Crawshaw v. Eades, 1 B. & C. 181); or on board a general ship (Ibid. and 3 East, 397 ; 7 T. R. 440; Mills v. Ball, 2 B. & P. 457); though at the risk and expense, and in the name and by the appointment of the vendee, will not devest the right of stoppage in transitu. And see Ruck v. Hatfield, 5 B. & A. 632.

The right of stoppage in transitu cannot be exercised to the disturbance of the right of third persons. If the first vendor do any act by which he sanctions the sale by his vendee, his right of stoppage in transitu is devested. See the opinions of the Judges in Hawes v. Watson, 2 B. & C. 540. Supra, 1643; Stoveld v. Hughes, 14 East, 308; Harman v. Anderson, 2 Camp. 243.

(u) Supra, 168.

(x) Ogle v. Atkinson, 1 Marsh, 323; 5 Taunt. 759. Noble v. Adams, 7 Taunt. 59. 2 Marsh. 366.

(y) Stonard v. Dunkin, 2 Camp. 344. (z) Supra, 116; infra, tit. Warranty. cannot be placed in statu quo. Hunt v.

Secus, where the parties
Silk, 5 East, 449.

(1) [In South Carolina, an action for money had and received will not lie to recover back the purchase money, where the property proves to be unsound, unless there has been a return, or at least a tender of it, or where there has been an entire failure of the consideration. Wharton v. O'Hara, 2 Nott & M'Cord, 65. Duncan v. Bell, ibid. 153. Ashley v. Reeves, 2 M'Cord, 432. But, where the action is brought on a note given for the purchase money, and the

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IV.

Competency.

Where the price of goods has been paid, the vendee cannot recover the price as upon a failure of consideration, although the goods were in a bad condition, or even unfit for use (a) (2).

A witness who is answerable to a vendee, in case the title turn out to be defective, is not competent to support * 1647 the title in an action against his vendee, * founded on an alleged defect of title (6). But one who has sold an inhe

(a) Fortune v. Lingham, 2 Camp. 416.

(b) 2 Roll. Ab. 685; 1 Str. 445. In the case of Briggs v. Crick, 5 Esp. C. 99, Cor. Lord Alvanley, it is stated to have been ruled that the original vendor of a horse, with a warranty of soundness, was a competent witness to prove the soundness in an action against his vendee on a similar warranty, on the ground that there was no direct interest, and that although the horse might have been sound when sold by the witness, yet unsound when sold by the defendant. But the principle of this decision appears to be dubious; for, unless the testimony as to the soundness at the time of the former sale tended to prove soundness at the time of the latter sale, it would be irrelevant. If, on the other hand, his testimony of the soundness at the time of the first sale tends to proof of soundness at the time of the second, then the witness seeks to establish a fact, in which, if he failed, damages would be recovered, to which he would it seems be liable on negativing the fact which he attempted to prove, viz. the soundness at the time of the first sale. See Lewis v. Peake, 7 Taunt. 153; 2 Marsh. 431. Infra, 1667.

defendant gives in evidence that the property for which it was given was defective, it is not necessary that he should prove an offer to return the property, &c. Duncan v. Bell, ubi sup. Where the vendor of a horse, on the vendee's offering to return it as unsound, admitted the unsoundness, and agreed to pay if the horse died, it was held that the vendee might recover back the price in an action for money had and received. Martin v. Howell, 2 Const. Rep. 750.

In cases of fraud, where the consideration fails, the vendee is not bound to demand the property he gave, nor to tender that which he received. Boyd v. Logan, Cooke's Rep. 394.]

(2) [In New Hampshire, it has been decided that it is no defence to an action on a note, that the article for which it was given proved to be of no value. Reed v. Prentiss, 1 N. Hamp. Rep. 174. But if the property had never passed, or fraud had been practised, the action on such note might be defeated. Ibid.

In an action for the price of a horse, the vendee may in N. York give in evidence that the horse was unsound and of no value, as a defence to the whole demand. Beeker v. Vrooman, 13 Johns. 302.

In Tennessee, the vendee, when sued for the price of a negro warranted sound, may give in evidence in mitigation of damages, that the negro was unsound. Sample v. Looney, I Overton's Rep. 85.

In Kentucky, it is not an available defence, in assumpsit for goods sold, that the article purchased is of less value than was represented, if it was received, was of any value, and was used by the defendant. Allison v. Noble, 1 Littell's Rep. 279. See Heigleman v. Jeffries, 1 Serg. & Rawle, 477. Supra, Vol. II. 643, note (1).]

ritance without any covenant for good title or warranty, is competent to prove the title of his vendee (c).

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PART

IV.

The owner of property is competent either to affirm or disaffirm a sale by himself, in an action between other Competency. ties, for the verdict would not be evidence either for him or against him in any future action. Thus, in an action of trover, for a horse, a witness is competent to prove that the plaintiff agreed that the witness should take the horse as a security for 157., deposited by the witness with the plaintiff, and that the horse should be sold at the next Woodbridge fair, if the money was not paid in the mean time, and that the witness sold him to the defendant at that fair, the money not having been paid (d).

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So in an action between the assignees of Greaves a bankrupt, and a purchaser from a judgment-creditor, who had taken the goods in execution, it was held that a witness was competent to prove, on the part of the defendant, that he being the owner of the goods had contracted with the bankrupt for the sale, and had given him a deliveryorder merely to enable him to take home the oil and inspect it in bulk; and that it was expressly stipulated that the bankrupt should not sell the oil until the witness had been paid by a good bill (e).

It has been held, that in an action for goods sold to the defendant, and delivered to A. B. at his request, A. B. is not a competent witness for the plaintiff without a release (ƒ).

And one who has purchased goods in his own name, is not, it has been held, a competent witness for the plaintiff to prove that he acted merely as agent to the defendant (g).

(c) Busby v. Greenslate, 1 Str. 445. [Twambly v. Henley, 4 Mass. Rep. 441.]

(d) Nix v. Cutting, 4 Taunt. 18.

(e) Ward v. Wilkinson, 4 B. & A. 410.

(f) Wright v. Wardle, 2 Camp. 200, Cor. Lord Ellenborough. The competency of A. B. was contended for on the ground that the plaintiff, after bringing that action, could not resort to A. B.; and Lord Ellenborough was at first inclined to admit the testimony; but afterwards, it is stated, deemed a release to be necessary, on the ground that the witness might have misled the plaintiff, and might still be liable in case of detection. But qu. whether the first impression of that very learned Judge was not the correct one, and whether, upon general principles, fraud is to be presumed in order to raise an exception to the competency of a witness. See R. v. Newland, East's P. C. 1001; supra, 585, (z).

(g) M'Brain v. Fortune, 3 Camp. 317. Lord Ellenborough said, "I do not think he can be examined, either on the ground that he is a necessary witness, or that he stands indifferent between the

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