Wertheimer, Swarts Shoe Co. v. Exchange Bank

Rombauer, P. J. — Upon a trial of this cause the court instructed the jury to find a verdict for the defendants, which they did. The plaintiff appeals, and assigns for error that under the pleadings and evidence this instruction was erroneous. The action is replevin by the vendor of goods against the mortgagees of the vendee. The petition is in the ordinary form, and the answer a general denial. The evidence is not preserved in full in the record, but according to the recitals of the transcript there was evidence tending to show the following facts: That the vendees made false and fraudulent representations to the plaintiff as to their financial condition for the purpose of inducing the plaintiff to sell to them the goods in controversy; that the plaintiff did part with the goods and sell them to the vendees upon the faith of these representations; that the vendees were insolvent; that the indebtedness of the vendees to the defendants was contracted before the sale of the goods, and that at the time of the execution of the mortgage no new consideration passed between the vendees and their mortgagees, the present defendants. There was no evidence tending to show that the defendants knew of any fraud of the vendees in the purchase of the goods from plaintiff. It will be thus seen that, according to the recitals of the bill of exceptions, there was no evidence tending [664] to show whether the goods were bought on credit, or on part credit, or whether they were paid for in whole or in part. This is not a suit for the price of the goods so as to require an affirmative plea of payment, but a suit to avoid a sale for fraud, where the fact that the sale was on credit must be affirmatively shown by the vendor who seeks to avoid the- sale. We might possibly infer from "the statement, that the plaintiff parted with the goods on the faith of the vendee’s false and fraudulent representations touching their financial condition, that the goods were bought, at least partly, on credit; but even if we could infer such fact, on which we desire to express no opinion, it would not aid the plaintiff, because a vendor under these circumstances can not avoid the sale and retake the goods, unless he replaces his vendee in statu quo and returns to him the consideration received. Cahn v. Reid, 18 Mo. App. 115. Finding this fatal defect in the evidence preserved in the transcript at the outset, we are precluded from examining the points presented upon the argument. If the evidence tended to show no more than the bill of exceptions recites, on which question the bill'of exceptions is conclusive, the court committed no error in directing the jury to find a verdict for the defendants. The judgment is affirmed. All concur.