McCrillis v. Allen

The opinion of the court was delivered by Noyce, Ch. J. The only purpose to be subserved by a reference to the evidence, where the facts are found by the court, is, to enable this coui't, upon the hearing of the exceptions, to ascertain from an examination of it whether it supported the facts found. We are well satisfied that in this case the court was justified in finding the facts reported upon the evidence; and the findings must be regarded as conclusive. The only question, then, is, can the plaintiff, upon the facts found, maintain an action of trover? He was induced to part with the possession of his property upon false and fraudulent representations made to him by the defendant, and made for the purpose of fraudulently getting possession of the property without paying therefor; and the consignment of said property to Austin & Co., which the defendant procured the plaintiff to make, was a scheme to give to the contemplated fraud the form of a bailment, in order to accomplish the fraudulent purpose. Upon such a state of facts we are not inclined to be astute in criticising the form of action adopted by the plaintiff to [507] recover for tlie property of which he has been so defrauded; but we think there is abundant authority to sustain this form of action. In the fourth edition of Benjamin on Sales, sec. 433, it is said that where one obtains possession of the goods of another by fraud, no property passes to him from the true owner. The title remains in the owner; and he may maintain replevin to recover the possession, or trov er for the conversion. That principle has been recognized and acted upon in this State, in the cases of Field, Morris & Co. v. Stearns, 42 Vt. 106; Poor v. Woodburn, 25 Vt. 234; Fitzsimmons v. Joslyn, 21 Vt. 129, and other cases referred to on page 614 of Roberts’ Digest. There was no error in the judgment of the County Court, and it is affirmed.