Scheuer v. Goetter, Weil & Co.

HEAD, J. The charges given for plaintiffs were clearly erroneous. Plaintiffs claimed title to the goods by reason of an asserted rescission of a sale thereof which they had previously made to Bradley, on account of fraud alleged to have been practiced by Bradley upon plaintiffs, inducing them to make the sale. Bradley had sold and delivered the goods to defendants, who claimed to have purchased without notice of any fraud that may have been committed by him in his purchase from his vendors — the plaintiffs. It is settled law that to entitle a seller of goods to rescind the sale, on the ground of fraud practiced upon him by the buyer, inducing the sale, and recover in detinue or trover against a sub-purchaser, who shows that he paid value for the goods, he, the original seller, must prove, not only the fraud perpetrated upon him by his vendee, by which he was induced to make the sale, but further, that the defendant —the sub-purchaser — had notice of that fraud, at the time he paid value for tlfe goods, or of such facts as would put a reasonable man on inquiry which, if followed up, would lead to such notice. The charges in question ignore entirely this essential of notice on the part of the sub-purchaser, and substitute therefor, as sufficint to entitle plaintiffs to recover, so far as the question of notice is concerned, the hypothesis that the original vendee, Bradley, sold the goods to defendants with intent to defraud his creditors, and that defendants participated in that intent. That is not an issue in this cause. The rights of Bradley’s creditors are not involved in the action. Trover pre-supposes title in the plaintiff, without which there can be no recovery. The rescission, if effectual, divested all title out of Bradley, and re-invested it in plaintiffs by relation, as of their original ownership. They then could no longer be regarded as creditors of Bradley. They are not now pretending to assert any rights as creditors. They could assert none in this form of proceeding. It is wholly immaterial, therefore, whether fraud upon the rights of creditors infected the sale of Bradley to defendants or not. Plaintiffs’ rights are the same with or without such fraud. We do not say that facts going to establish [317] fraud, in that connection, may not be evidentiary, in an action of trover like this, as having a tendency to show fraud in the original purchase, and notice thereof on the part of the sub-purchaser. Their competency for that purpose will depend upon their peculiar nature and connection with other facts, to be determined as they are presented, or applied by appropriate instructions. — Traywick v. Keeble, 93 Ala. 498; Hornthall v. Schoufield, 79 Ala. 107; Cohn v. Stringfellow, 100 Ala. 242. The charge requested by the defendants asserted a correct legal proposition, and ought to have been given. LeGrand v. Eufaula National Bank, 81 Ala. 123; Johnston v. Bent, 93 Ala. 160. Reversed and remanded.