Roswald v. Imbs & Co.

STONE, C. J. Charge No. 2, given at the request of plaintiff below, can not be maintained. It requires the defendants, not only to prove the affirmative fact that they had purchased the flour, and paid a valuable and adequate consideration for it, but to take .a further step, and prove that, at the time they made the-purchase and payment,they were “without notice of any facts or circumstances to put them upon inquiry in regard to the defect of Locke’s title to the goods.” This was requiring too much of them. Such is not the order of proof. The burden was first on the plaintiff, to show by facts and circumstances that Locke obtained the goods with the fraudulent intent of not paying for them. — Loeb v. Flash, 65 Ala. 526. This would entitle the plaintiff to recover against Locke, or any one else who did not show a better title. The onus would then shift, and Roswald & Stohl must show they were purchasers of the goods for value. Doing this, they could rest on their defense, unless, in proving it, they showed they had knowledge of Locke’s fraud, or of facts and circumstances wThich should have put them on inquiry, which, if followed up, [317] would have discovered the* fraud. Theonus would again shift, and if Imbs & Co. claimed that Roswald & Stohl had notice of Locke’s fraud before they concluded their purchase, the duty would rest on that corporation to make proof of it. Thames v. Remhert, 63 Ala. 561; Craft v. Russell, 67 Ala. 9; Lehman, Durr & Co. v. Kelly, 68 Ala. 192. ^Reversed and remanded.