Harner v. Fisher

The opinion of the court was delivered, May 14th 1868, by Thompson, C. J. The case in hand is not of the class in which attempts have sometimes been made to rescind contracts solely on the ground of a failure to disclose the circumstances of a contracting party; for instance, the insolvency of the buyer who knows himself insolvent and not able to pay what he promises. There are cases both ways in our books, as to the sufficiency of this as [457] a ground of rescission, enabling tbe vendor to proceed for the recovery of his property in specie: Mackinley v. McGregor, 3 Wh. 369, is strictly of this nature. But Smith v. Murphy, 9 Harris 367, disapproves this rule, and seems to require circumvention and artifice; active fraud; in other words, the “lie with circumstances,” to have the effect. It does not deny that a vendor may intend to part with property as on a sale, and still may pursue and recover it on the ground that his assent was obtained by fraud, which being nullified by the fraud, there having been no assent, the title remains. Fraud nullifies everything tainted by it. 'We have held recently that the sale and delivery of a horse was void, because the money received as good was counterfeit: 14 Wright 212. That is no new doctrine. It is a case, however, of a rescission of a contract, executed in form, but void for fraud. There is no difference in the eye of the law as to the effect of the fraud, on account of the difference in its manifestation. The effect is the destruction of the contract, come in whatever shape it may. The case in hand was a case of fraud by concoction and combination or conspiracy. The testimony presented only this feature, and the whole burthen of the charge of the learned judge to the jury was, “ that if there was a fraudulent combination between Shorb and the defendant to obtain the possession of the mare in question, by falsehood or by false representations, and that deceit, falsehood and fraud were used to obtain her, and that she was obtained in this way, then the. pretended contract of sale is void, and the plaintiff is entitled to recover.” This was an unexceptionable answer to plaintiff’s points, according to Smith v. Murphy and other cases. The defendant’s points were all answered properly in their abstract propositions, but qualified by a reference to the contingency of the alleged fraud existing. This was proper. Any other course would have lost sight of the true point in issue, namely, whether the testimony established that the plaintiff was deceived and defrauded into parting with his property by the falsehood and deceit of the defendant and his coadjutor Shorb. The testimony of the latter showed that all he did and said in his agency to procure the possession of the mare, was pre-arranged, and was in every particular false. The poor excuse attempted, that the defendant took this method to secure some claim he alleged he had against Fisher, is not supported by anything in the case. But the same excuse might with the same plausibility have been urged if he had taken the beast by force or in the night time. A creditor has no more right to defraud his debtor into parting with his property for his benefit, than anybody else; and the latter is as well entitled to the privilege of assenting to the disposition of it when it is not taken by law, as other per [458] sons. The morality of the defendant, however, it would seem, did not come up to this; but this may be a lesson. If he is caught in his own trap, he alone is to blame. In no part of the charge do we discover anything to correct, in view of the case as presented in the testimony. There was no error in admitting Shorb to testify. He was the defendant’s agent, and he could not object to his disclosure of the instructions under which he acted, and what he did in pursuance of them. I do not see that he went beyond them, and if he did, and his conduct was more fraudulent than it was intended to be, the principal could not derive any benefit therefrom. No doubt, in most cases of fraudulent purchases of personal property, an innocent purchaser without notice and for value, from the fraudulent vendee, would be protected; but while this has been discussed in the argument at bar, it is in the light of the evidence, a mere abstraction, and need not be further discussed in this opinion. There being no error in the record, the judgment is affirmed.