Fraschieris v. Henriques

Leonard, J. When it is conceded, as it must be on authority, that no-tender or-' offer to surrender the promissory notes or other -negotiable paper is necessary before the commencement of. an action to recover the possession of goods fraudulently purchased, where the vendee only is liable thereonj and that the: production!of the paper at the trial-and there offering to surrender or cancel it is sufficient, it is difficult to find any sound reason in principle for holding that there is a necessity that the vendor ¡should have had the possession of the paperj or the -power -to surrender it-at the time the action was commenced. - The. paper was worthless. The courts have arrived at the conclusion that a tender of such notes before action is not necessary, and that the production and surrender at the trial is sufficient to prevent-any damage„from resulting to -the vendee; If the surrender at the trial is a sufficient protection where the‘vendor- had the.m'otes continuously-from the time the vendee delivered, them, it is- equally- sufficient, although at some period before the- trial- they were out of his possession. • ■ The negotiation '.’iff the paper can-make no difference. The technical rule requiring a tender*' previous "to the action is abrogated The principal question is, whether the vendee obtained the goods by fraud. He is a robber if he did, preying upon the honest. trader,. and not entitled to the benefit of any technical rules, rendering it unnecessarily difficult to commence or maintain' an action for the recovery of property which he has so-.fraudulently obtained. - The vendee, will prevail, even where -he has purchased fraudulently, if .his notes be not surrendered at the trial. This rule will shield him from injustice, and that seems to me sufficient. ' . The ground upon which the judge placed his decision, in the rule entered upon, the trial, renders the examination of other questions in the case unnecessary. There should be' a new trial, with costs to abide the event. [281] Clebke, J. concurred.