Partridge v. Ruben — 25 N.Y. St. Rep. 906

Majority

p. 906

Isaiah Partridge, App’lt, v. Fanny Ruben, Resp’t.

(New York Common Pleas, General Term,

Filed June 22, 1889.)

Headnote

Sales—Fraud—Bona fide purchaser.

Where a person purchases goods obtained from a third party by fraud, he is not a. purchaser for value, unless he has paid for them in cash or its equivalent, and in ignorance of the fraud by which the rightful party was induced to part with them.

Appeal from a judgment entered by the second district court.

For statement of case and decision on motion for re-argument, see ante, p. 148.

George Wilcox, for app’lts; P. & B. Goodhul, for respt’s.

This judgment is. erroneous, and must be reversed. The justice of the district court, adopting the argument of the counsel for the defendant, held that the defendant was not privy to the fraud practiced by Epstein upon the plaintiff; she must be considered a purchaser in

p. 907

good faith, and as such entitled to hold the property. Whatever her good faith may have been, she' was not a purchaser for value, for she parted with nothing when she obtained the goods. It is preposterous to argue that the charge made against her in the books of Epstein is the giving of a thing of value by the defendant. If the demand against her that Epstein held has been assigned to a third party, that would not make her a purchaser for value. The law upon this subject is too well settled to make the citation of authorities necessary or even proper. The case of Devoe v. Brandt ( 53 N. Y., 466 ), and the cases of Spicer v. Waters ( 65 Barb., 227 ), DeMott v. Starkey (3 Barb. Ch. R., 403), Jewett v. Palmer (7 Johns. Ch. R., 65), Jackson v. Cadwell ( 1 Cow., 622 ), Barnard v. Campbell ( 58 N. Y., 73 ), and the very recent case of Eaton v. Davidson, decided in Ohio, and reported in 21 North Eastern Rep., 442, show that even securing the payment of the purchase money is not enough; the purchase money must be actually paid in order to make the purchaser a purchaser for value. See, also, 2 Am. and Eng. Encyclopedia of Law, 444.

The vendor of goods, who has been swindled out of them, can reclaim them from any one who has not paid for them, either in cash or its equivalent, and in ignorance of the fraud by which the rightful owner was induced to part with them.

Judgment must be reversed, and a new trial ordered, with costs to the plaintiff and appellant, to abide the event.