Hyperlawhypertext legal database Weiss v. Brennan 41 N.Y. Super. Ct. 177

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Weiss v. Brennan

41 N.Y. Super. Ct. 177 9 Jones & S. 177 Court N.Y. Super. Ct. Decision date 1876-04-03 English

Delivered by *180 By the Court.—Sedgwick, J.

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p. 177
WILHELMINA WEISS, Plaintiff and Respondent, v. MATHEW J. BRENNAN, Defendant and Appellant.
Before Monell, Ch. J., and Sedgwick, J.
Decided April 3, 1876.

Headnote

I. FRAUDULENT SALE OR TRANSFER OF PERSON AL PROPERTY, OTHER THAN NEGOTIABLE PAPER. TITLE' OF VENDOR OF SUCH PROPERTY TAINTED WITH FRAUD.
1. Vendee for a valuable consideration, title of, when
AFFECTED RY SUCH FRAUD.
(а) . Notice.—When it appears that he liad previous notice of the fraudulent intent of his immediate grantor or of the fraud rendering void the title of such grantor.
(б) . What constitutes notice ; Enquiry.
1. If the facts and circumstances, in the exercise of common prudence, ought to awaken the suspicion of the vendor or grantor, and lead him to inquire, a neglect to inquire is in its consequence the equivalent of positive notice.
(a). This is constructive notice.
Appeal from judgment.
The action was for trespass, in wrongfully taking and converting personal property.
p. 178
The defense was that the alleged taking, &c., consisted in the defendant’s levying an attachment against the goods of a firm, Meyers & Lohse, upon the goods in question, and that said Meyers & Lohse, or one of them, had a leviable interest in the goods. The answer contained a general denial, excepting, &c.
On the trial, it appeared that Meyers and Lohse were retail dealers in house furniture. The plaintiff in the attachment had sold the goods in question, which were house furniture, to Meyers & Lohse about the middle of March. After that, the husband of present plaintiff- bought out Meyers. The business went on by Weiss & Lohse. After that, about April 12, Weiss & Lohse, for the purpose of transferring to the plaintiff (Weiss’ wife) a title, made a bill of sale, of.the business and goods to one Bauer, and at the same time Bauer, made a bill of sale to the plaintiff. Bauer had no rea.1 interest. The plaintiff paid an adequate consideration in money. Through the transactions in evidence, the husband acted as the agent of the plaintiff. The plaintiff in the attachment, the jury would ■ have been at liberty to find, called about the middle of April, and when the credit to Meyers & Lohse had expired, at the store, where the business had been done, to collect his. bill. Weiss, the husband, was sweeping out the store, and on being told of 'the circumstances, said that Meyers had sold out, but that his partner Lohse, was in the back room. There was a conversation then with Lohse, in which the facts of the sale to Meyers & Lohse, were stated. Lohse said he would pay one hundred dollars the next day. The plaintiff in the attachment, went there the next day, and saw Lohse & Weiss, the husband, in conversation. Lohse at once walked out of the store, and would not speak. Weiss, the husband, said the business was sold out to Bauer. Nothing was said about Bauer having sold to the plaintiff. The e facts were disputed
p. 179
by the plaintiff and her witnesses. The jury might have found the existence of other facts, which related to whether the transfer to her was ordinary or unusual in its circumstances.
The court refused to charge the jury as requested by the defendant, “ that the notice” referring to the fraudulent intent, if it existed, of Lohse, in making the transfer to defraud the plaintiff in the attachment,
‘ ‘ required by the statute need not be direct, but if the facts and circumstances, attending a transfer of personal property are such as would put an ordinary man on his guard, and lead him to make inquiries, and he. did not do so, then he is held to have had notice,” and that to refrain from inquiring when the circumstances are such as to put a man of ordinary prudence on inquiry, is in judgment of law want of good faith.
The defendant excepted. The jury found for plaintiff. This appeal is from the judgment entered upon the verdict.
Vanderpoel, Green and Cumming, attorneys, and Robert S. Green, of counsel for appellant, urged:
The circumstances entitled the defendant to go to the jury with the legal effect of such facts and circumstances stated as requested. If in the opinion of the jury such facts and circumstances would have put an ordinary man on inquiry, and none was made, or there was not due diligence in inquiry, in such a case it was more than want of business capacity—it was constructive notice of any defect such inquiry might have developed (Pringle v. Phillips, 5 Sand. 157; Danforth v. Dart, 4 Duer. 101 , 106; Baker v. Bliss, 39 N. Y. 70 , 74, 76; Whitbread v. Boulnois, 1 Y. & Coll. Ex. 303, 328).
Kurzman & Yeaman, attorneys, and M. Yeaman, of counsel for respondent.

If the plaintiff liad notice of the intent of Meyers or Lolise, in making the transfer to his or her vendor, to defraud the plaintiff in the attachment, the transfer to her was void against him. The rule "in relation to constructive notice applies to such a case, and a vendee is chargeable with a hnowledge of all the facts, that by a proper inquiry, he nrght have ascertained. He proceeds at his peril, if he omits to inquire. If the facts and circumstances, in the exercise of common prudence, ought to aw¿iken his suspicion, and lead him to inquire, a neglect to inquire, is in its consequences the equivalent of positive notice. These propositions are stated to be law in Pringle v. Phillips ( 5 Sandf. 157 ). That case related to goods that had been obtained fraudulently from the plaintiffs by the vendor of the defendant. Unnecessarily the court, said the principles in question, were applicable to negotiable paper ; all bough this • application has by many subsequent cases been deemed not to be law, the general application to chattels, and the transfer of other rights than such as relate to negotiable instruments, is n-cognized and acted upon. The case of Danforth v. Dart ( 4 Duer. 106 ), reiterates the principle and cites Pringle v. Phillips; Baker v. Bliss ( 30 N. Y. 76 ), cites these two cases and says, “ a want of caution and diligence, such as an honest man would ordinarily exercise, is a want of good faith.” The same rule is recognized fully, and succinctly stated in Devoe v. Brandt ( 53 N. Y. 466 ). There are very many cases on cognate transactions, which it is not necessary to cite.

There were facts in this case, which would have been properly considered by the jury, had the question been submitted to them, in saying whether the circum stances would have excited a suspicion, in a man of common prudence, that Meyers or Lolise intended to defraud the pi intff in the attachment, and whether,

p. 181
if ordinary investigation had taken place, based upon that suspicion, it would have resulted in showing that the intent was, in some way, to impair the creditor’s rights. Certainly a stock of goods is a better security, when in a debtor’s possession, than is the full value of them in money in the debtor’s pocket. In the present case, the plaintiff’s business was conducted by her husband, and she is chargeable with such knowledge as he had, and such notice as was given to him. I am, therefore, of opinion, that the learned judge should have charged as requested on this subject, by the defendant’s counsel, and that there should be a new trial, the judgment being reversed, with costs to appellant to abide the eyent.

Monell, Ch. J., concurred.

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