Morningstar v. Sterne & Co.

TYSON, J. — One Kelly by false impersonation of McFarland induced the plaintiffs, who were shoe merchants in the city of Montgomery, to ship to the order of McFarland at Forrest, a station on the Louisville & Nashville Railroad, seven cases of shoes, and to render to him a bill shoAving the purchase by him of them. The sale Avas upon thirty days5 credit. After the arrival of the shoes at Forrest, Kelly, in the name of McFarland, to AArhom the shoes Avere consigned, by letter directed the agent-of the railroad company at Forrest to foi’Avard them to EArergreen, and from Evergreen he had them forAvarded to Mobile. Upon their arrival in Mobile, Kelly, avIio Avas a stranger to the defendant, called at his place of business, Avliich Avas that of a paAvn-broker, for the [513] purpose of obtaining a loan of $67.50, giving as an excuse that he needed the money in his business. After making this application for the loan, Kelly went away and soon returned with the cases of shoes upon a dray, and also produced the bill given to him by the plaintiffs. During his absence, however, the defendant went to. see Lowenstein Bros., who Avere Avliolesale shoe merchants in the city of Mobile, to learn of them “whether there Avas anything wrong about a felloAV bringing seven cases of shoes there,” evidently meaning to his shop or Mobile. ' The loan was consummated and the cases containing the shoes AA’ere deli verod. to the defendant, and a mortgage exeeutd to him by Kelly signed Farland, instead of McFarland. The bill for the goods shoAved them to have been sold by plaintiffs to McFarland for $123.85; the shipping directions upon the cases not only disclosed their shipment to McFarland, but also shoAved that they avoco shipped-by the plaintiffs. The record contains the statement that the defendant kneAV nothing of the fraud perpetrated by Kelly upon the plaintiffs .in procuring possession of the bill for the goods and of the goods themsoKcs. It may be true that he had no actnal knoAvledge that Kelly had acquired the possession of the goods and of the bill for them by the most egregious fraud, but his good faith does not depend upon his actual knowledge of the fraud committed by Kelly. Certainly, Kelly, who Avas desirous of disposing of the property, Avould not disclose the manner of its acquisition by him; no thief would do this. Such a disclosure Avould not only luiA'e prevented a disposition by him of the property, but Avould have been incriminating evidence against him upon a prosecution for the criminal act committed by him. Were the circumstances as disclosed by the evidence in the record such as to put the defendant upon inquiry that Kelly had acquired the possession of the goods by dishonest methods? If so, it cannot be said that he Avas a bona fide purchaser for value Avithout notice. We are clearly of the opinion they were, and this seems to have been the opinion of the defendant himself. The reasons that prompted him to make the inquiry of Lowenstein Bros, can be assigned to no other cause, than that he suspected that Kelly had acquired the shoes dis [514] honestly. Had he followed this honest prompting as he should have done and made inquiry of the plaintiffs, he would doubtless have learned the truth of the transaction, instead of contenting himself with a knowledge of the fact that Kelly had not defrauded his neighbor Lowenstein. Doubtless he felt security from discovery when it was made known to him that Kelly had perpetrated the fraud upon a merchant in a distant city. The conclusion from all the evidence is irresistible and to the exclusion of every adverse inference that the defendant, who is shown by the record to be indifferent as to whose property he takes by way of pledge and from what thief he so acquires it, in this transaction acted in bad faith and is not entitled to invoke that provision of law enforced for the protection of men acting fairly and honestly in a transaction — bona fide purchasers for value without notice. — Loeb & Bro. v. Flash Bros., 65 Ala. 542. Not being a bona fide purchaser for value without notice, it is a matter of no consequence whether Kelly be regarded as having stolen the shoes, or of having obtained them by false pretenses. The result, so far as this defendant is concerned, is the same. He, having converted them, is liable to the plaintiffs. There was no error in giving the affirmative charge requested by the plaintiffs. Affirmed.