Cary v. Hotailing
New York Supreme Court
Replevin, for taking 75 barrels of flour, and 25 half barrels of beef-tongues, tried at the Albany circuit, June, 1839, before Cushman, C. Judge. The plea was non-cepit; and it appeared at the trial, that the plaintiffs, (who were provision dealers in Albany,) on the 30th of August, 1837, sold the flour and tongues to the defendants, partners and provision dealers, in the city of New-York.
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Replevin, for taking 75 barrels of flour, and 25 half barrels of beef-tongues, tried at the Albany circuit, June, 1839, before Cushman, C. Judge. The plea was non-cepit; and it appeared at the trial, that the plaintiffs, (who were provision dealers in Albany,) on the 30th of August, 1837, sold the flour and tongues to the defendants, partners and provision dealers, in the city of New-York. William Hotailing, one of the defendants, made the purchase at the plaintiff’s store in Albany, and the articles were delivered to and shipped by him to his brother Samuel, the other defendant, who was then…
1Opinion of the Court
By the Court, Cowen, J.
Clearly, the proof tended to show that William Hotailing obtained the goods fraudu*313lently; and it is not denied that fraud, especially if it be indictable, may so far avoid a sale that ail action of trover will lie. It is denied, however, that an action of trespass will lie; and it is said that therefore this action of replevin for a wrongful taking, which is strictly concurrent with trespass, will not.
The general doctrine is perfectly settled, that fraud avoids a contract of sale. (Bristol v. Wilsmore, 1 Barn. & Cress. 514. Kilby v. Wilson, 1 Ryan & Moody, 178. Root v.…
2Cases cited9 opinions
- Badger v. PhinneyMassachusetts Supreme Judicial Court · 1819
- Root v. FrenchNew York Supreme Court · 1835
- Lloyd v. BrewsterNew York Court of Chancery · 1834
- Buffington v. GerrishMassachusetts Supreme Judicial Court · 1818
- Andrew v. DieterichNew York Supreme Court · 1835
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