Crafts v. Belden

Foster, J. The fact that counts in contract and tort were united in this declaration in the manner permitted by the practice act, Gen. Sts. c. 129, § 2, cl. 5, cannot be deemed to be a waiver of the right of the plaintiff, as assignee in insolvency, te rescind the sale as fraudulent against the insolvent laws. If 539 such could ever be the effect of the method of pleading adopted, which we do not intimate, it cannot be in a case like the present, where it satisfactorily appears that all the counts were intended to disaffirm and repudiate the sale. A waiver is an intentional relinquishment of a known right; and the doctrine of Butler v. Hildreth, 5 Met. 51, is simply that an assignee, who, with knowledge of the facts, has brought an action for the price of goods sold, cannot discontinue it and then sue the purchaser in trover for the value of the goods on the ground that the sale was illegal and consequently a conversion of the property. But the principle of that case has no application to the present. Nor is a mere demand of the price by the assignee an irrevocable affirmation of the sale. The counts in contract were abandoned at the trial, and it was within the discretion of the presiding judge to determine at what stage the plaintiff must elect on which counts he would rely. No exception lies to his decision on this point. Sullivan v. Fitzgerald, 12 Allen, 482. The instructions with reference to the fraudulent character of the sale were carefully guarded, and favorable enough to the defendant. If he had reasonable cause to believe that it was the vendor’s intent to contravene the insolvent laws, the sale would be void, although the benefit of the preference might enure, not to himself, but to another and wholly bond fide and innocent creditor who by reason of his innocence could retain the payment. ' The provisions of the statute are as broad and sweeping as possible, and are levelled against the most indirect and circuitous preferences. Gen. Sts. c. 118, §§ 89, 91. If any Dart of the purpose of tne sale or conveyance was fraudulent the whole was void. Exceptions overruled.