Legal Opinion

Davis v. Stewart

United States Circuit Court

Decided September 15, 1881PublishedCited by 6 opinions

An action of replevin is brought to recoverthe possession of goods alleged to have been fraudulently purchased by Harter & Claus, defendant’s assignors. The plaintiffs rescind the sale, and follow the goods, stating in their petition “that when Harter & Claus purchased the bill of goods they were insolvent, and did not expect to pay for the same.” The case was tried with a jury, and a verdict rendered for the-plaintiffs. Motion is made for a new trial.

1Opinion of the Court

Nelson, D. J.

The rule stated by Hilliard on Sales meets with my approval, to-wit: “Where the purchaser is insolvent, and has no reasonable expectations or intention of paying for the goods, he gains no title against the vendor.” It is not necessary to allege or show false pretence or other direct artifice. When no questions are asked, no false pretences, no artifice resorted to, silence is not fraud; but concealment of insolvency, with no reasonable expectation of paying, renders a sale fraudulent. See Thompson v. Rose, 16 Conn. 71, 81; Johnson v. Monell, 2 Keyes, 655; Powell v. Bradlee, 9…

2Cases cited2 opinions

  1. Thompson v. RoseSupreme Court of Connecticut · 1844
  2. Johnson v. MonellNew York Court of Appeals · 1866

3Cited by6 opinions

  1. Gillespie v. J. C. Piles & Co.Court of Appeals for the Eighth Circuit · 1910
  2. Elbro Knitting Mills v. SchwartzCourt of Appeals for the Sixth Circuit · 1929
  3. Skinner v. Michigan Hoop Co.Michigan Supreme Court · 1899
  4. German National Bank of Ripon v. Princeton State BankWisconsin Supreme Court · 1906
  5. In Re P. H. Krauss & Co.District Court, W.D. Tennessee · 1924

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