
    Henry J. Hinck et al., Respondents, v. John C. Wilmerding et al., Appellants.
    (City Court of New York, General Term,
    May, 1896.)
    1. Fraud — Will not be presumed.
    Fraud will not be presumed, but must be proven, or facts established which impute.to the party to be charged knowledge of the fraud practiced or intended, so that he was put upon inquiry.
    2. Same.
    Evidence insufficient to connect the party in possession of goods which has been purchased through fraud with the fraud of the original vendee.
    Appeal from judgment in favor of plaintiffs and from order denying motion for a new trial.
    Gruber & Bonynge, for respondents.
    Goldsmith & Doherty, for appellants.
   Conlan, J.

Appeal from a judgment in favor of the plaintiffs and from an order denying a motion for a new trial.

•' This is an action of replevin, and was commenced originally against the firm of Wilmerding, Morris & Mitchell, and thereafter Morris Garfinckle, on his own motion, was allowed to come in and defend.

The defendants Wilmerding, Morris & Mitchell did not appear in the action. The subject of the action was nine pieces of worsteds of the alleged value of $650. The plaintiffs sold the Worsteds to one Alexander, who, at the time of the purchase, made certain representations to them as to his solvency, he claiming to them that he was worth $18,000 to $20,000, and at the end of the_ month of April, 1894, he would inherit about $10,000 from his mother, making him worth about $30,000.

These representations were made by Alexander to the plaintiff Hinck, who says he did not investigate them at the time, but that Alexander failed in business on April 24, 1894, and then Hinck began an investigation. He says he found some of the goods at Wilmerding, Morris & Mitchell’s auction rooms and learned from that firm that they were received from Garfinckle.

Plaintiff called upon Garfinckle, without disclosing himself or the object of his visit, and -was told by Garfinckle that he had no such• goods as samples shown him by the plaintiff;' that he was not doing business that day (Saturday), but if he would call after six o’clock, he would show him what he had.

It further appears that he called and did not find the goods in question, and then, -without any further dealing with Garfinckle, commenced this action against the firm of auctioneers to replevin the goods, and did not join Garfinckle as a defendant, although he was made aware that the latter had sent the goods to the auction rooms, claiming the ownership and to be entitled to the proceeds.

The plaintiffs called their vendee, Alexander, to- the stand, who, strange to say, proved for them the falsity of his representations, and he further -testified that -he did not sell the worsteds to Garfinckle, but that he sold them to different, parties.

• At folio 52 he says.: “ I had most of my dealings with Bozozi, a customer of mine who had been in the habit of buying goods from me for quite a while; ” but he was unable to say if. Garfinckle ever bought any goods of Bozozi

. It is admitted that no demand was made upon Garfinckle for the goods; the.contention of the plaintiffs being that as the goods were not in .his possession, that he. denied that the goods represented by the samples shown were his goods, and that the plaintiffs had assumed that he was not an innocent holder," that, therefore, a demand was not necessary.

The - plaintiff Hinck also says: I knew when I commenced suit against Wilmerding, Morris & Mitchell, that Garfinckle had placed the goods in their store for sale.”

There was no evidence down to the close of the plaintiffs’ case' in any way connecting Garfinckle with the - transaction originating with Alexander, except what occurred at the- interview between him and Hinck, '

At the- close of the plaintiffs’ case a motion was made for a nonsuit, on the- grounds: • ■ . .

First. That a cause of action was not proven.

Second. That- no demand had been made upon Garfinckle. Third. That there was no evidence connecting Garfinckle with any fraudulent transaction; and the same-was denied and the de-' fendant excepted. ■ '

Garfinckle testified that he bought the goods of Bozozi; that he had known him for six or seven years, and had bought of him before, and had many transactions with him; that he bought goods of him on the 18th day of April, and paid him by check; prices of the goods range from $1.50 to $2.00 per yard, and he gave him a check on thé East Side Bank for $910, and afterward, on the 24th day of April, he gave him a check for $1,200, to pay him what he owed him, including a previous bill, and that check, bearing Bozozi’s indorsement, was put in evidence by the defendants. He says he never bought any goods of Alexander, and did hot know that the goods in question were purchased of Alexander. The bill of goods purchased of Bozozi, on April 18, 1894, "was put in evidence without objection, and it is for 563 yards, amounting to $760.05, and marked “paid.”

He also, says that when Hinck called on him, he took out some samples and said: “ Have you that, and that? ” And he replied: “I have nothing like those in the house because I sold them at auction,” and also that he had sixty or seventy lots at Wilmerding, Morris & Mitchell’s, and that they were all sent on the same day, and that he asked the auctioneer to sell them for $2 per yard, hut that if he got $1 he would be satisfied. They were sold before Hinck called. -

He further explains the average of $1.35 per yard paid Bozozi, saying: “ There were some goods worth as low at $1.10 and.some seventy-five cents per yard; ” and he could not tell how'many were worth $2 and how many seventy-five' cents.

John J. Morris, of the auction firm, also testified that they had dealt with Garfinckle for five years, and that his goods came to the auction in the- ordinary way.

We have referred somewhat at length to the evidence adduced on the trial, with a view of ascertaining, if it were possible, just upon what the jury found their verdict for the plaintiffs,' to the end that, if such á verdict were warranted by the evidence, it would not be within our province to disturb it except for errors and rulings of the trial judge, and we are inclined to the opinion that all the evidence in the case, of which a fair sample is here given, does not sustain the finding of the verdict in favor of the plaintiffs.

There is no evidence imputing knowledge of the fraudulent practice and representation of Alexander to the defendants; on the contrary, they both swore they did not know either in the transactions and dealings.

There is no evidence connecting Bozozi with the fraud of Alexander, and in the former dealings with the defendants we do not find grounds for casting any suspicion of unfair dealing upon Gar finckle; indeed, it appears to us that there has been a failure of proof to show that the appellant was- aware of the fraud practiced by Alexander, or that he was' other than an innocent holder for value, and, therefore, nothing need be left to conjecture.

We may not presume fraud, but. rather should it be proven, or facts established which impute to the party to be charged knowledge of the fraud practiced or intended, so that he may be put. upon his inquiry.

. Nothing of this kind is disclosed in the present' case. •

While we are not prepared to say that the case was entirely free from error in the refusal of the court to dismiss the complaint at the close of the plaintiffs’ case, or at the close of all the testimony, it is altogther inconceivable that a verdict for the plaintiffs should have been rendered after .the. charge to the jury on the whole evidence in the case, and .upon the request of the defendant’s attorney, all of which were charged without exception.

For the reasons .stated we are impelled to the conclusion that the verdict ought not to stand, and the judgment is, therefore, reversed; and a new trial granted, with costs to the appellants to abide the event. • ■ .

Schuchman, J., concurs.

. Judgment reversed and a new trial granted, with costs to appellants to abide event.  