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When

trover the proper remedy.

Fraud.

Rescission of contract.

CHAP. IV.

TROVER BY VENDOR.

TROVER by the vendor is the proper form of action, to recover the goods, where the contract becomes void ab initio, or where it has been rescinded after the vendee has obtained possession. Thus, it is the proper remedy where goods have been sold upon credit, and, before the time of credit has expired, the plaintiff discovers that the defendant has been guilty of fraud in the transaction (a); as, where a bill or note has been given in payment, which the purchaser knew at the time to be worth nothing (b).

The plaintiff is always at liberty to rescind the contract on the ground of fraud: but on the mere default of one party (without fraud), the other cannot annul the contract, except where both parties can be put in statu quo (c). By the assent of both parties, the contract may be rescinded at any time (d), provided that the rights of

(a) Strutt v. Smith, 1 Cr. Mees. & Rosc. 312, 315; Fergusson v. Carrington, 9 B. & C. 59; Abbots v. Barry, 5 B. Moore, 98; Stephenson v. Hart, 4 Bingh. 476, 484. Supra.

(b) Read v. Hutchinson, 3 Campb. 352, 3.

(c) Hunt v. Silk, 5 East, 449; S. C. 2 Smith, Rep. 15.

(d) Salte v. Field, 5 T. R. 211; Lovat v. Parsons, Cowp. 61; Richardson v. Goss, 3 B. & P. 119. See 4 Bingh. 583; Parry v. Dawson, 3 Anstr. 710; Bailey v. Culverwell, Dan. & Lloyd, Merc. Ca. 176; S. C. 8 B. & C. 448.

third persons have not intervened (e). And after it has been so rescinded, the vendor is in all respects remitted to his former right; therefore he may maintain trover against a third party who has converted the goods, though the conversion have taken place before the goods had revested in the vendor(ƒ).

contract.

The vendor may bring trover to recover the Nullity of goods, whenever they have come wrongfully into the vendee's possession without vesting the property in him; as, where the vendee was under terms of paying on delivery, and obtained possession of the goods by giving a check which he had no reasonable expectation at the time would be duly honoured (g). Gibbs, C. J., is reported, in the case of Noble v. Adams (h), to have expressed an opinion, that "unless the representations of the purchaser amounted to the offence of obtaining goods under false pretences, it could not be said that the contract was altogether void." Park, J., however, in commenting upon the case, observed (i), that the remark was made in reference only to the particular circumstances of that case,

(e) Smith v. Field, 5 T. R. 402. See id. 211. Of the right of the vendor to maintain trover after stopping the goods upon the insolvency of the purchaser, see above, Chap. ii. p. 188–209. (f) Pattison v. Robinson, 5 M. & S. 105.

(g) Hawse v. Crowe, Ry. & Moody, 414.

(h) 2 Marsh. 366; S. C. 7 Taunt. 59. See 2 Marsh. 370; 5 M. & Payne, 390.

(i) 5 M. & Payne, 396, 7; 7 Bingh. 552, 3.

and that the general doctrine was not intended to be so laid down. And if the goods in question be proved to have been obtained by fraud, though the defendant may be acquitted by the verdict of the jury of any actual implication in the dishonest transaction, yet it is sufficient to support the plaintiff's action, if the defendant has been involved in the legal consequences of the fraud. Thus, where the original purchasers procured the consignment fraudulently, and without the intention of making payment, and the agent, who effected the purchase, was also the agent for the defendants (to whom the goods were afterwards bona fide transferred), and was cognizant of the fraud of the original purchasers, it was held that the plaintiffs were entitled to recover in trover (k); for the defendants must be intended in law to be cognizant of the fraud committed by their agent with the view to benefit them. So the vendor may recover in trover, where the sale was conditional only, and the goods have been accidentally delivered without

(k) Irving v. Motley, 5 M. & P. 380; S. C. 7 Bingh. 543. See Fitzherbert v. Mather, 1 T. R. 12, 16; Paley, Pr. & A. 258, (3d Ed.). But this is not to be understood as laying down the rule, that, where a party purchases articles, which at the time he knows he will not be able to pay for, though those goods may have passed through other hands in the fair way of purchase, the original seller shall have a right to recover them in whose hands soever they may be found. See per Tindal, C. J., 5 M. & P. 393.

the performance of such condition (); or, where the consignee has prevented the consignment from vesting in him by refusing to perform his part of the stipulated contract (m). But if the property has in fact been altered by the sale, notwithstanding that the vendee may have been guilty of a breach of some undertaking, trover by the vendor cannot be supported (n).

So, the vendor may maintain trover, where the Sale by ungoods have been sold and delivered to the defend

ant by a third party, acting as agent, who had no authority to sell (o); or, even where the agent had authority to act but exceeds that authority,-as, where a factor, authorized to sell goods, barters (p) or pledges (q) them, or, where the factor wrongfully delegates his authority to another to sell the

(1) Bishop v. Shillitto, cited in Hornblower v. Proud, 2 B. & A. 329,n. See per Bayley, J., ibid. 333; Shepley v. Davis, 5 Taunt. 617; S. C. 1 Marsh. 252.

(m) See Brandt v. Bowlby, 2 B. & Ad. 932. Shipping to the account of the consignee, and transfer to him of unindorsed bill of lading, does not irrevocably vest the property in him, but only vests it subject to the performance by him of his part of the contract. (And see TROVER BY VENDEE, Part 2, Chap. ii.).

(n) Power v. Wells, 1 Dougl. 24, n.; S. C. Cowp. 818; Emanuel v. Dane, 3 Campb. 299.

(0) Dyer y. Pearson, 3 B. & C. 38; S. C. 4 D. & R. 648.

(p) Guerreiro v. Peile, 3 B. & A. 616; Howard v. Chapman, 4 C. & P. 508.

(q) Paterson v. Tash, 2 Stra. 1178; Kuckein v. Wilson, 4 B. & A. 443. See next page.

authorized

agent.

Factor

could not pledge at

common

law.

goods (r),—or, where he acts after his authority has been revoked (s).

An important alteration has been made in the law, in respect of the power of a factor to pledge the goods of his principal. It had frequently been decided (t), that a factor had no right whatever to pledge, because, it was said, the power of a factor is strictly a power to sell; and although it was admitted to be a hard case that the pawnee should have no claim against the owner, on the ground that the pledgor was a mere factor, whether the pawnee was ignorant or cognizant of his character as such, yet the law was considered too well established to be shaken. For it was held, that, as the factor's lien was a personal privilege, and not transferable, the pledgee (with or without notice) had not a claim even to the extent of the factor's claim against the principal, and that the owner therefore

(r) Solly v. Rathbone, 2 M. & S. 298. See Cochran v. Irlan, 2 M. & S. 301, n.; Schmaling v. Tomlinson, 6 Taunt. 147.

(s) See Dickenson v. Lilwal, 1 Stark. N. P. C. 128; Farmer v. Robinson, 2 Camph. 339, n.; Bristow v. Taylor, 2 Stark. N. P. C. 50; Jackson v. Clarke, 1 Y. & J. 216.

(t) Paterson v. Tash, 2 Str. 1178; Daubigny v. Duval, 5 T. R. 604; Martini v. Coles, 1 M. & S. 140; Shipley v. Kymer, 1 M. & S. 484; Boyson v. Coles, 6 M. & S. 14; Pickering v. Busk, 15 East, 44; Feather tonhaugh v. Johnston, 8 Taunt. 237; Guichard v. Morgan, 4 B. Moore, 36; Duclos v. Ryland, 5 B. Moore, 518, n. ; De Bouchot v. Goldsmid, 5 Ves. Jun. 211; Peet v. Baxter, 1 Stark. N. P. C. 472; Stierneld v. Holden, Ry. & M. 219; Williams v. Barton, 3 Bingh. 139.

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