Blake v. . Blackley

Avery, J.: The main question raised by the appeal is whether, upon the whole of the evidence, in any phase of it, and in the particular aspects presented by the Judge below to the jury, the plaintiffs were entitled to recover. The mere fact, if admitted, that the defendant told a falsehood, or made a promise to pay at a time when he knew he would not, in all reasonable probability, be able to pay, would not invalidate the sale. Rut, if one induces another to part with his goods by a promise to pay cash for them on the same day, showing a check to inspire confidence in his engagement, when, in fact, he does not intend, at the moment of making the representation, to pay for the property in money at any time, but purposes, after getting possession of it by holding out the hope of the immediate receipt of ready cash, to credit its value on a claim held by him against the owner or one of the owners of it, the contract is fraudulent and voidable, at the instance of the original owner, and where the owner has been induced to surrender the possession, he may maintain an action in the nature of detinue, and recover the specific property, if to be found, or in the nature of trover for the wrongful conversion, consummated by the refusal to surrender it on demand. Bishop on Contract, § 667; Benjamin on Sales, § 656 and note 18; Smith v. Young, at this term; 8 Am. and English Enc., 650; Donaldson v. Farwell, 93 U. S Rep., 631. The representation of the defendant, if the testimony was believed, that he wished to start the horses in the early *263 morning while it was cool, and transferring them from the road ordinarily traveled to his home from the place of purchase to another way not so well known, in connection with the declaration made to a witness before he had acquired possession of them, that he intended to play a trick on Wynne, were sufficient to warrant the verdict. It was the duty of the Judge to submit this testimony with all of the circumstances, and let the jury pass upon the intent of the defendant, and the defendant has no just ground to complain that the language in which his Honor couched the proposition was such as might have misled the jury to his prejudice. Whether the declaration of the defendant was drawn out by a direct question or whether made gratuitously, the object in telling Wynne that he had money in the bank and exhibiting a check, was to induce Wynne to surrender the property before it was paid for, and ultimately to avoid paying for it, and, therefore, the false representation, which the jury find misled Wynne and caused him to part with the horses before receiving the purchase-money, vitiated the contract ab initio at the option of the injured party to be exercised within a reasonable time. Wilson v. White, 80 N. C., 280; Donaldson v. Farwell, supra. In this view of the case it is immaterial whether the property belonged to the feme plaintiff or to her and Wynne as partners, or to Wynne individually. A creditor is not allowed, by practicing a fraud, to acquire title to the property of his debtor, even with the purposj of crediting its value on a just debt. Smith v. Young, supra. If the law should give its sanction to the wrongful conversion of property, whether by force or fraud, for the purpose of collecting even undisputed debts, the end would not justify the means, either legally or morally. There was evidence tending to show that the defendant exhibited a check for wrhich he declared that he could not get the cash in the afternoon or evening before, because the banks of the city of Raleigh were closed, and that he would *264 get the cash for it on the morning following so soon as the banks should be opened. It was not material whether his language was such as to' convey the idea that his money was on deposit in a Raleigh bank or elsewhere. The gravamen of the fraud was in falsely and wilfully creating the impression on the mind of Wynne that he had money which could be procured by means of a check, and which he would apply in payment for the horses, when, in fact, the defendant’s purpose was to acquire possession of the horses and to credit the value, with or without the assent of Wynne, on a debt which •Wynne owed him. Another exception made by the defendant seems to be founded upon the theory that because a married woman is not a free trader and has no power to bind her separate property by a contract, she has no right to acquire property by purchase or to maintain (even when her husband is joined) an action for the wrongful withholding of it after she has acquired it. “It is settled law in North Carolina that our statutes (The Code, ch. 47) impose no limit upon the wife’s power to acquire property by contracting with her-husband or any other person, but only operate to restrain her from or protect her in disposing of property already acquired by her.” Osborne v. Wilkes, 108 N. C., 667; Battle v. Mayo, 102 N. C., 439; George v. High, 86 N. C., 99; Kirkman v. Bank, 77 N. C., 394; Dula v. Young, 70 N. C., 450; Stephenson v. Felton, 106 N. C., 121. For the reasons given, we think there was no error in the rulings of the Court below, which constitute the grounds of exception, and the judgment must be affirmed. No error.