Lowenstien & Bros. v. Abramsohn

Whitfield, J., delivered the opinion of the court. The jurisdiction is abundantly sustained by Bishop v. Rosenbaum, 58 Miss., 81, and Pollock v. Okolona Savings Inst., 61 Miss., 293. On the merits, we rest our decision upon the distinct ground that the proof satisfactorily shows that the goods were not actually worth more than the debt due appellee. It is perfectly obvious, from the testimony of Dancey, that Allen’s bid was not for the value of the goods alone, but also for what it would be worth to him to prevent the sale of this bankrupt stock in Dublin at or below cost. The highest bid really made for the goods, as such, was the sum of $2,500. Allen had been told by Dancey that they would be sold, and Dancey had then told Abramsohn what he had told Allen, and Abramsohn, acting on this knowledge, was simply forcing Allen to bid all he could be made to bid, not to get the goods only, but to keep off this disastrous competition. That is the real situation—one not foreseen, nor reasonably to be foreseen, by Abramsohn’s agent, Stone, at the time of the purchase of the stock by him in ex-tinguishment of Abramsohn’s debt. We put our decision on this express ground, not sanctioning the doctrine of ex post facto purgation of fraud. A transaction [898] stamped by the vitiating element of actual fraud' at the time remains such, as to that particular transaction, always, and a doctrine that such a transaction can be purged of its fraud by matter ex post facto, and become itself (that particular transaction) honest, is abhorrent to any enlightened system of jurisprudence. It simply puts a premium upon fraud. But there was no actual fraud here, and Abramsohn’s purpose was to get his just debt, and that was what, in fact, at that time, he got. The surplus beyond that value—the price of what it was worth to Allen to keep out this disastrous competition—he is not entitled to and does not claim. Affirmed.