Wilmot v. Lyon & C›.

5. DEMAND REQUIRED, WHEN.

Demand is only required before replevin proceedings are commenced, when necessary to terminate the defendant's right of possession or confer the right cf possession upon the plaintiff.

6. POSSESSION OF GOODS OBTAINED BY FRAUD.

Where goods have been obtained by fraud, the right of possession never passes to the purchaser at all. If the sale is elected to be rescinded, it is because there was no right on the part of the purchaser in the outset to the possession of such goods.

7. JUDICIAL NOTICE OF THE BUSINESS OF MERCANTILE AGENCIES.

Courts will take judicial notice of the nature of the business and the office of mercantile agencies.

8. REPRESENTATIONS Made to MERCANTILE AGENCIES.

Where a representation is made to a mercantile agency and that same representation is carried by the agency to the seller, that is substantially a representation made by the buyer to the seller.

9. ADMISSION OF STATEMENTS MADE TO A COMMERCIAL AGENCY.

The statements made to a commercial agency and also the statements made by the agency to its subscriber, the purchaser, are proper to be introduced in evidence to enable the jury to say whether the agency stated to the purchaser those things which it had been authorized to state to the latter or to any. body else who had any good reason for inquiring.

10. PURCHAse of Goods BY AN INSOLVENNT Person, Effect.

When a person buys goods, being insolvent, knowing that he is insolvent, and not intending to pay for those goods, such sale is fraudulent and void.

11. CONTRACT FOR THE PURCHASE of Goods on CREDIT.

A contract for the purchase of goods on credit, made with the intent on the part of the purchaser not to pay for them is fraudulent.

12. PURCHASE of Goods WITH NO EXPECTATION TO PAY, EFFECT.

If the purchaser of goods has no reasonable expectation of being able to pay for them, such fact is equivalent to an intention not to pay.

13. ADMISSION OF EVIDENCE IN AN ACTION TO SET ASIDE A SALE ON THE GROUND OF FRAUD.

In an action to set aside a sale on the ground of fraud, it is competent to introduce false representations made by the purchaser to other persons, both before and after the sale, for the purpose of showing that there was a fraudulent concealment on the part of the purchaser not to pay for such goods.

14. ADMISSIONS OF AN AGENT.

The admissions of an agent, if they are to bind his principal, must be made in the execution of the purposes of his agency.

15. ADMISSIONS OF AN AGENT IN AN ACTION TO REPLEVIN GOODS FROM HIM. Where goods are replevied from an agent of others, in which action the agent defends in his own name, any admissions of his which bore upon the subject of his right as an individual to hold the goods, can be used as against him, though such admissions were not made in the execution of the purposes of his agency.

ERROR to the Court of Common Pleas of Cuyahoga county.

BALDWIN, J.

This case comes into this court on a petition in error filed by the defendant below to reverse a judgment of the court of common pleas.

The action below was one of replevin for some goods which were claimed by John H. Lyon & Company to have been sold by them to the Chagrin Falls Paper Company. The action in replevin was not against the Chagrin Falls Paper Company, but against E. P. Wilmot. John H.

Cuyahoga Circuit Court.

Lyon & Company claimed that the goods had been purchased from them by the Chagrin Falls Paper Company by fraud; and the frauds that they claimed were two. In the first place they claimed that the Paper Company had made statements of its condition to Bradstreet's Agency which were false and fraudulent, and that these statements had been communicated to them, and they relying upon these statements as true, had sold these goods to the Paper Company.

Secondly, they claim that the Paper Company was very largely insolvent; that the Paper Company, at the time that it bought these goods from the plaintiffs below, knew that it would be unable to pay for them, and absolutely intended not to pay for them; and it was claimed that the company had schemed to buy a large quantity of goods from various persons, which it had gotten into its possession; that the Paper Company then turned out the goods which were here replevined, with other goods, to certain favored creditors-some eleven or twelve in number— and those creditors delivered the goods to the defendant below, the plaintiff in error, as their agent; so that Wilmot held the goods as agent for the creditors to whom they had been mortgaged to secure their debts. It was not claimed that Wilmot stood as a purchaser, or in any better condition than the Chagrin Falls Paper Company, with some slight exceptions which I shali speak about as I go along.

The first question made was in regard to the sufficiency of the pleadings. The petition in replevin was the short form generally used. It first stated that the case came into the court of common pleas by appeal from the judgment of a justice of the peace. The petition then stated that the defendants, were E. P. Wilmot and E.B. Pratt-and I will say that E. B. Pratt dropped out of the case altogether; the goods were apparently in the possession of E. P. Wilmot alone, and I do not know but that the case was actually dismissed as to Pratt; but the substantial allegation of the petition is this:

"The said defendants, E. P. Wilmot and E. B. Pratt, wrongfully detain from plaintiffs the following goods and chattels of these plaintiffs, to-wit :"

(Then it goes on and aescribes the goods.) "Said defendants have wrongfully detained said goods and chattels for the space of days, to the damage of these plaintiffs in the sum of two hundred dollars." The verdict of the jury and the judgment of the court were in favor of the plaintiffs below for the goods, but not for any damages.

It is said, in the first place, that there is here no allegation that the plaintiffs are the general owners or the goods, and that it is necessary that there be an allegation that they are either the general owners of the goods, or special owners, and that if they are special owners of the goods, then the facts must be set forth which entitle them to that special ownership; because there may be a general ownership, and there may be a special ownership which will entitle the special owner to hold the goods even as against the general owner.

Certainly there are no words in this petition that signify that the plaintiffs are the general owners of the goods unless such ownership is inferred from these words: "Wrongfully detain from plaintiffs the following goods and chattels of these plaintiffs."

Now, the form that is there used is substantially the form that was recommended by the Code Commissioners; and it is the form that is laid down in Bates on Pleading. The form in Bates on Pleading is: "The defendant wrongfully detains from plaintiff the following goods and chat

Wilmot v. Lyon & Co.

tels of the plaintiff ;" and that he takes to be equivalent to an allegation of the general ownership in the plaintiff. The form Wilcox gives is still shorter, and seems to be quite a different one. The form that Judge Swan gives in his book on Pleading, page 446, is like that in Bates. The form given in Nash's Pleading and Practice states more exactly the ownership But this is substantially the form that has been in general use; an it be true that that is not an allegation of general ownership, it is a question of a good deal of importance which has been largely overlooked by the profession.

There is not only that question made of there being a want of an allegation of general ownership, but two other objections are made to this petition.

It is said that the title of the plaintiffs at the time of the replevin being by virtue of a rescinded fraudulent sale, and they claiming on the ground that there was fraud practiced by the Chagrin Falls Paper Company, it was their duty to set forth in the petition the fraud. And then it is claimed further that the title of E. P. Wilmot was such that he was entitled to have the goods demanded of him before they were replevined, and that there should have been an allegation of a demand of the goods. I have named these questions, together because practically in the books they are considered in a measure together.

Now, the practice here and elsewhere has been, where goods are replevined on the ground that they have been fraudulently purchased, to use precisely the same short form. It has, in practice, been considered as being the rule that where a person claims as being the general owner of goods, under any circumstances whatever, the allegation should be made in this short form;-just as in actions in ejectment, for instance. An action in ejectment may be based precisely upon a claim of fraud; but it is not alleged and set forth. As far as the forms of the pleading is concerned, the two rest upon a somewhat different ground, because in the case of ejectment the Code expressly lays down what shall be a sufficient petition; but the Code does not in express terms lay down in actions in replevin, in the manner in which it does in actions of ejectment, what shall be a sufficient petition.

The two sections of the Code that relate to replevin which I shall read are:

"Section 5814. The possession of specific personal property may be recovered in an action as provided in this chapter."

"Section 5815. An order for the delivery of property to the plaintiff shall be issued by the clerk of the court in which the action is brought, when there is filed in his office an affidavit of the plaintiff, his agent or attorney, showing :

"First-A description of the property claimed.

"Second-That the plaintiff is the owner of the property, or has an interest therein; and if the ownership or interest is special or partial, the facts shall be stated.

"Third-That the property is wrongfully detained by the defendant. "Fourth-That it was not taken on process issued against the plaintiff, nor for a tax; or, if taken on such process, that the property was exempt from execution expressly, or upon demand or selection by the plaintiff."

Now, the practice, as I have said, following the form here prescribed for the affidavit, has been that if the plaintiff claims a general ownership, he may just set it forth, either by the words, "that the plaintiff is

Cuyahoga Circuit Court.

the owner of the property," or by the words "the goods and chattels of the plaintiff;" and the ownership is a special or partial one, then it has been the custom to set forth in the petition the acts which entitle the plaintiff to the possession of the property.

The use of this form seems to be generally sustained by the authorities. There is no direct authority in our own state. Mr. Nash, in his work on Pleading and Practice, says:

"I suppose a statement of facts is only necessary when the plaintiff claims a special property in the goods entitling him to the immediate possession of them as against the defendant, who is the general owner thereof."

A case in Col. 89, holds that the rule requiring fraud to be specially pleaded, does not apply in replevin. That is cited in Bates.

In a case in 55 N. Y., 671, the case of Simmons v. Lyons, it is expressly said that this form, "that the defendant has become possessed of and wrongfully detains from the plaintiff the following goods and chattels of the plaintiffs," is sufficient; and that doctrine was sustained in a case in 49 N. Y., 262; also in a case of Hoisington v. Armstrong, 22 Kan., 110. The cases have gone upon the ground that the question to be tried is whether or not the party is immediately entitled at the commencement of the suit to the possession of those goods, and that the fact to be alleged is whether or not he is entitled to that possession. And it is quite evident that it has been considered that the particular mode in which he might be entitled to that possession, has been regarded as a matter of evidence, and that if the plaintiffs had been the original owners of the goods, and they had been purchased from them by fraud, those were evidential facts, rather than the final facts which were to be stated in the pleadings.

That this section 5815, which does not in terms apply to the framing of the petition, is, after all, to be regarded in the framing of the petition, is recognized in our reports. I suppose the fact is that the forms in replevin follow the old practice; but discussing it simply on the Code as it stands, as I said, section 5815, regulates the form of the affidavit, and it does not say that the petition shall be in accordance with that form. But that the petition is to be framed substantially in the same manner, is recognized in the case of Robinson v. Fitch, 26 O. S., 663. That was a case where the defendant undertook to set forth what he said was a special ownership, and set forth the facts. The court said that although he had set forth those facts, and had not alleged that he was the general owner, yet the facts showed that he was the general owner, so that in that particular case his petition was just as good as if he had said in so many words, and in short words, that he was the general owner. The court say:

"The plaintiff only claimed in his petition to have a special property in the elephants; and counsels for the plaintiffs in error, assuming that he is confined to this claim, and that his rights are thereby limited to those of an owner of a special interest or property, contends that the petition does not state facts sufficient to entitle the plaintiff to recover on the ground of such special ownership. The second subdivision of section 175 of the Code provides that an order for delivery of property shall issue on the filing of a proper affidavit, showing 'that the plaintiff is the owner of the property, or has a special ownership or interest therein, stating the facts in relation thereto, and that he is entitled to the immediate posses sion of the same.'

Wilmot v. Lyon & Co.

It, from the statements of the petition, it appeared that the plaintiff had only a special ownership or interest in the property replevined without stating the facts in relation thereto, it is probable that we would concur in the views of counsel for the plaintiff in error, and hold that the petition does not state facts sufficient to entitle the plainti to recover on the ground of a special ownership or interest; but we have above found, from the facts stated, that the plaintiff is the general owner of the property, and entitled to its immediate possession.

Therefore they said that the petition was sufficient, basing their decision non a discussion of the same section, 5815.

to come, then, to this question next: Was this a general ownership? Granting that this petition, in form, is a good petition, so that a demurrer would not lie, was the interest of the plaintiffs in that action such an interest that they could not introduce those facts under this general petition? Because this petition simply alleged their rights to be that of general owners, an objection was taken to the introduction of the facts on the ground that under the facts as they were claimed in the evidence, the plaintiffs were special owners, and not general owners. In short, after goods have been purchased by fraud from a merchant, and the merchant undertakes to rescind the sale and replevin the property, is he the general owner, or has he a special property in those goods? I think it would ordinarily be the sense of the profession that if that sale was elected to be rescinded by the vendor, it was from that time on a void sale. The general theory in regard to fraudulent saics is, that when those sales are set aside, the sales are void; and in regard to real estate the courts have even gone so far in this state as to say that a creditor may levy upon a piece of land that has been conveyed, taking his chances afterwards of having the sale set aside; because, if the sale is fraudulent, the conveyance is void, and may be treated as such; and it does not seem easy to see, if that sale was elected to be rescinded, why the plaintiffs were not, as far as the title to that property was concerned, restored to their original rights-had the right to its possession, had the right to its sale, had the full and complete ownership of that property. And that, under the evidence in this case, these plaintiffs had the full and complete ownership of that property, the right to use it just as they pleased, and the right to sell it to anybody else, is established, unless there is some error in the proceedings, by the verdict of the jury and the judgment of the court below.

A special ownership is one which is partial, and is limited, and sometimes quite limited, in its character; for in the Fitch case the court held that the right of the mortgagee of the chattels to take them was that of a general owner.

It is said that no demand was made of the Chagrin Falls Paper Company, and that no tender back was made to the Chagrin Falls Paper Company of a note which had been given by the Chagrin Falls Paper Company to John H. Lyon & Co. for these goods, and that on that ground they had not fully elected to rescind this sale. There was evidence that a demand for the goods had been made of E. P. Wilmot, and that the note which had been made by the Chagrin Falls Paper Company to John H. Lyon & Co., had been tendered to him before the commencement of the suit.

But it is said that the sale, or contract of sale, having been made with the Chagrin Falls Paper Company, the demand should have been made of them, and that their note should have been tendered back to