Farwell v. Prescott

Landon, J. We adopt the opinion of the learned trial court. As between McIntosh and the plaintiffs, the fraud of McIntosh in not intending to pay for the flour gave the plaintiffs the better title to it. The fact that McIntosh after delivery had the right to reject the flour, if upon, inspection it should not be found to conform to his order, was McIntosh’s right, and not in any respect a right of the plaintiffs. The plaintiffs’ delivery was complete, and McIntosh thereupon could instantly sell the flour to a bona fide purchaser for value. Defendant was such a purchaser. The plaintiffs, however, contend that, since neither McIntosh nor defendant knew at the time the bill of sale of the stock of goods was delivered to defendant that the flour had been delivered at the store, therefore no part of the consideration paid by the defendant for the stock of goods on sale was paid for the flour, and hence the case is not brought within the rule that only he who has paid valué or made advances or incurred responsibilities upon the credit of goods, obtained from the owner by fraud, can claim to own them as against such owner. Barnard v. Campbell, 65 Barb. 286, 55 N. Y. 456, 58 N. Y. 73. But the fact is the defendant bought the stock of goods hastily, without an inventory, without previous expectation of buying them, and at best with but a rough and imperfect estimate or knowledge of the specific articles composing the stock. He bought them under the influence of a fear that unless he bought them McIntosh would manage to evade payment of the debt he owed him. He took the risk of the stock of goods being more or less than was estimated, but he certainly parted with the consideration upon the credit of whatever goods there actually were in the store. His reliance was that whatever were actually there on sale became his. To say that because lie did not know about this flour he did not deal upon the credit of it would be to enunciate a principle Which, if applied in detail to the items of his stock, might deprive him of them one by one. He dealt upon the credit of the mass of goods, and the flour proved to be a part of it. Judgment affirmed, with costs. ■ All concur.