McNabb v. Whissel

WILLIAMS, J. The judgment should be affirmed, with costs. The action was to recover the purchase price of a car load of lumber purchased by the defendant from the plaintiff’s assignor. The defense was, in brief, that the vendor had no title to the lumber when the sale was made, and that the vendee had surrendered the same to the real owner. The plaintiff’s assignor purchased the lumber from the Eastern Lumber Company. The theory of the defense when the answer was served was that the sale by the lumber company to the plaintiff’s assignor was upon credit, and such credit was induced by fraudulent representations. Upon the trial, however, it appeared that the sale was for cash, but for some reason, not explained, cash was not paid upon the delivery of the lumber to the purchaser, and then the defense was sought to be maintained upon the ground that title did not pass to the purchaser because of the nonpayment of such purchase price. It was claimed this defense was not permissible under the answer, and the answer was not amended to conform to the facts as they appeared upon the trial. Upon this appeal it is claimed that the payment of the purchase price at the time the lumber was delivered was waived by the lumber company, and that such waiver was induced by the fraudulent representations, and therefore the waiver became ineffectual to pass title without payment of the purchase price. The trial court held the sale was for cash; that there were false representations, but that they were not important upon a sale for cash; that the defense sought to be sustained upon the trial that the title did not pass because the purchase price was not paid was not within the allegations of the answer, and could not, therefore, be upheld. [270] The defense sought to be established upon this appeal that the waiver of payment at the time of the delivery of the property was induced by the fraudulent representations cannot be sustained, because there was no proof made upon the trial that the waiver was so induced. This defense was not alleged in the answer, and was not litigated upon the trial. It did not appear how the delivery of the lumber without the payment of the purchase price happened to be made. The president of the lumber company, who made the sale, testified that in selling the lumber he relied upon the false representations; but he did not testify that he relied upon those representations in consenting to the delivery of the lumber without the payment of the purchase price. Indeed, he did not say whether he did consent at all. The sale was for cash, and the lumber company had the right to insist upon such payment as a condition of delivering the lumber. The lumber was, however, delivered without such payment being made. The defendant might have shown that the taking of the lumber was without the consent of the lumber company, or that such consent, if given, and waiver of cash payment made, was induced by the fraudulent representations. Proof was not made of either of these-facts, and, in the absence of such proof, no defense was made out, whether alleged in the answer or not. The case was therefore properly disposed of by the trial court, and the judgment and order should be affirmed, with costs. Judgment affirmed, with costs. All concur, except McLENNAN, J., who dissents in an opinion, and ADAMS, P. J., who did not sit.