
    George H. McPherren, Respondent, v. Charles M. Homan and Judson B. Bonnell, Appellants.
    
      Purchase of goods obtained by fraud—proof as to bona fldes.
    
    What proof establishes a bona fide purchase for full value of goods obtained from the true owner by fraud, considered.
    Appeal by the defendants, Charles M. Homan and another, from a judgment of the Supreme Court in favor, of the plaintiff, entered' in the office of the clerk of the county of Hew York on the 11th day of June, 1895, upon the verdict of a jury rendered after a trial at the Hew York Circuit, and also from- an order entered in said clerk’s office on the 11th day of June, 1895, denying the defendants’ motion for a new trial made upon the minutes.
    „ The action was brought to recover .chattels, commonly known as the action of replevin. . The- complaint alleged that on or about October” lj 1890, the -plaintiff was the owner of and possessed of 210 -140-pound (sacks of flour of the value of $847.50; that thereafter' the flour was stolen from the plaintiff and taken- from his possession without his consent' hy some persons to. the plaintiff - unknown, and that thereafter the'flour came into the possession of the defendants and was wrongfully detained by them, and that the- ground of such detention was that the defendants claimed to have purchased it from some persons to the plaintiff unknown..' The complaint further -alleged that the plaintiff was the owner of the flour and entitled to-the immediate possession thereof, and that the flour and the possession thereof were, before the commencement of the action, duly demanded by plaintiff of the defendants, who refused to deliver the same. The answer contained a general denial of the allegations in the complaint, and alleged that the flour at the time of the commencement of the action was the property of the defendants.
    Upon the trial the plaintiff gave evidence tending to show that he was the owner and in possession of the flour on and prior to October 3, 1890, and that on that day he shipped the same from Dakota, where he did business, to Robert A. Galt, in New York city; that Galt not being in a position to handle the flour, the plaintiff changed the consignment to his own order, and then made arrangements ‘‘by correspondence with one D. B. Smith, who claimed to be located at 101 West Forty-second street, New York city, to sell him the flour at five dollars and sixty-five cents per barrel; and that these arrangements were made entirely by correspondence. That the flour was delivered to some one .in New York city, and the plaintiff drew a draft for the purchase price of the flour upon D. B. Smith, but' this draft was never paid. That the plaintiff came to New York city and learned that no such person as D. B. Smith had ever done business ■ at 101 West Forty-second street, but found the larger portion of the flour in the possession of the defendants ; that in a conversation between plaintiff and the defendants, the defendants claimed to have purchased the flour of a stranger, in good faith, and to have paid the full value therefor, $697.50 ; that they refused to surrender possession of the flour to the plaintiff on demand thereof being made, and that thereupon this action was brought.
    At the close of the plaintiff’s evidence the defendants moved for a dismissal of the complaint on the ground that the plaintiff had failed to prove facts sufficient to constitute a cause of action, or that the flour had been stolen from him. The court held that the defendants could not retain the flour unless they showed that they were bona fide purchasers, and thereupon denied the motion, and the defendants excepted. The defendants then gave evidence tending to show that they were bona fide purchasers of the flour, and gave its full value therefor, $697.50.
    At the close of the evidence the defendants renewed their motion to dismiss .the complaint upon the same ground. The court held there was no evidence of the property having been stolen from the plaintiff, but denied the motion, holding that the questions for the jury'were whether there was a fraudulent purchase of the flour by Smith from the plaintiff, and whether the defendants were tona, fide purchasers, and that if there was such iraudulanf purchase the defendants could only hold the flour by" showing they were tona fide purchasers. To this ruling the defendants excepted.
    The court thereupon submitted the case to the jury in accordance with the ruling made, and the jury rendered a verdict for the plaintiff, fixing the value of the flour at $697.50, the amount paid by the defendants therefor. There was a motion for a new trial made,by the defendants and denied, to which denial an exception was taken, and a judgment was entered for the plaintiff, from which this appeal was taken.
    
      Samuel (John, for the appellants.
    
      Nathaniel A. Prentiss, for the respondent.
   Williams, J.:

It was very likely true, as the trial court held, that there was no proof in the case sufficient to establish the fact alleged in the complaint, that the flour was stolen by Smith from the plaintiff, If was at most a case of fraudulent purchase. In any event, the question whether the goods were stolen was not submitted to the jury, and the verdict was not based upon any such finding. It cannot, therefore, be sustained upon that theory. ■ The plaintiff alleged that the flour was stolen, but he also alleged that he was the owner and entitled to the possession of the flour; that lie had demanded possession thereof from the defendants, and that they had refused to deliver it to him. We think this was a sufficient pleading under which to permit the submission of the case to the jury, as the trial court submitted it, upon the question of a fraudulent purchase and the tona fides • of the purchasers — especially as the defendants in no way specir finally objected that the pleading was .not sufficient to permit such submission. We entertain some doubt as to whether there was. sufficient competent evidence to authorize a finding by the jury that there was a fraudulent purchase of the flour from plaintiff. However this may be, we are entirely satisfied that there was. proof upon which the jury should have found that the defendants were bona fide purchasers. The defendants testified to their entire good faith. It was found by the jury that they paid full value for the flour. They had no knowledge of the facts constituting the fraud in the purchase, if it existed, and we do not see that the facts and circumstances surrounding their purchase were such as to charge them with notice of such fraud. The defendants did.not know the person Lorn whom they purchased, and regarded the price asked as low and the purchase a good bargain. The man Ross, from whom the defendants claimed to have purchased, gave R. j. Dean & Co., a reputable business firm, as his reference, and the defendants inquired of R. J. Dean &' Co., who said it was all right. Ross told the defendants that he had purchased the flour by way of a trade. We think the facts were not sufficient to authorize a finding of the jury of bad faith on the part of the defendants in making the purchase of the flour.

Our conclusion is, therefore, that the judgment should be reversed and a new trial ordered, with costs of the appeal to the appellants to abide the event.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Judgment reversed and new trial ordered, with costs to the appellants to abide event.  