William Francis Clemmons, Respondent, v. Callman Rouse, Appellant

William Francis Clemmons, Respondent, v. Callman Rouse, Appellant. Sale# induced by fraud — the vendor may rescind and recover the property, except from a bona fide purchaser. Where the sale of personal property is induced by fraud, the true owner may rescind the sale and recover the property from a person who has received possession of it from the fraudulent vendee unless such person be a bona fide purchaser of the property. Appeal by the defendant, Callman Rouse, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of February, 1896, upon the verdict of a jury, and also from an order, bearing date the 13th day of February, 1896, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes. The action was brought to recover the possession of chattels. Prior to July 24, 1893, the plaintiff was the owner and had possession of the chattels. Between that day and August 29, 1893, plaintiff sold and delivered the chattels to the firm of Shápero & Kautrowitz upon credit. August 31, 1893, that firm sold and delivered the chattels to defendant. September 1, 1893, plaintiff demanded possession of the chattels from the firm and from the defendant. Possession was refused. Thereupon, on the same day, this action was commenced. The sheriff took the chattels under the requisition, excepting a small amount which he could not find. The defendant requested a return of the property to him and gave the proper security and the property was surrendered to him. The plaintiff claimed that the property was worth $600.27. Both parties claimed to be the owners and entitled to the possession of the property. On the trial the plaintiff gave evidence tending to show that the firm was guilty of fraud in the purchase of the property from him., and secured possession of the property by means of such fraud. The defendant gave evidence upon the subject of his having been a bona fide purchaser of the chattels from the firm. The case was submitted to the jury and a verdict was rendered in favor of the plaintiff awarding the chattels to him, fixing the value of the property at $600.27, and damages for detention at six cents. The usual motion for a new trial was made and denied. There was a motion at the close of the plaintiff’s evidence to dismiss the-conn plaint for want of sufficient evidence to warrant a verdict for plaintiff; which motion was denied, büt no exception was taken to . such ruling. There was no motion made at the close of all the evL dence, and no objection made to the submission of the case to the jui-y, .and there were no exceptions, to the admission or rejection of evidence worthy of notice. Max Cohen, for the appellant. Arthur Furber, for the respondent. [MAJORITY — Williams, J.:] Williams, J.: Upon.the record as presented, there are few questions for üs to> examine. The charge is not before us, and we do not know upon what particular theory the case was submitted to the jury; There was evidence upon which the jury might find that the purchase of the property by the firm from the plaintiff was fraudulent, and that the plaintiff might, therefore, rescind the sale and follow the property and recover it from the defendant, unless he was a" bona fide purchaser thereof' from the firm. (Barnard v. Campbell, 58 N. Y. 73.) There was evidence upon which the jury might find that the defendant was not such bona fide purchaser. We may assume that these questions of fact were properly submitted to the jury. The. defendant raised no objection to such admission, and took no exception to the charge of the court with reference thereto. The two exceptions taken to the exclusion of the evidence offered by the defendant and objected to by plaintiff are without merit. They do not raise the question suggested by counsel in his points, that he was precluded from giving evidence tending to show that the propr erty in suit was hot the same property the plaintiff had sold and delivered to the firm. The motion for a new trial was properly denied. There was evidence sufficient to sustain the verdict, and the exceptions: taken were without merit. The judgment and order should be affirmed, with costs. Van Brunt, P. J., Barrett, Bumsey and Patterson, JJ., concurred. Judgment and order affirmed, with costs.