
    William Hall v. Samuel W. Peckham.
    Monies received by an assignee under a voluntary assignment, for goods purchased by the assignor under fraudulent representations and with intent not to pay therefor, may be recovered of the assignee by the original vendor, in an action for money had and received to bis ttse. Nor is it necessary, before commencing srrit, to make demand of such goods or of such monies, nor to restore or to offer to restore any promissory notes given for such goods, it being sufficient to produce them at the trial, to be impounded, as ruled in Duval & Inglehart v. Mowry, 6 K. X. 479.
    In an action of assumpsit for the proceeds of goods obtained by fraud, brought by the vendor against the assignee of the fraudulent vendee, it not appearing that the defendant had been at all prejudiced by the plaintiff’s delaying suit for nearly a year after the obtaining of the goods, it cannot be adjudged error on the part of the judge trying the cause, that he refused to charge, as matter of law, that the plaintiff Was estopped, by such delay, from prosecuting his suit.
    Motion for a new trial of an action of. assumpsit, tried in this Court before Justice Durfee, with a jury, at the March term, 1866.
    The action was brought to recover from the defendant certain monies, admitted to have been in his hands, in his character of assignee of one Philip A. Doyle, at the commencement of the suit; and among the facts in proof, or agreed, were these, viz.: That said Philip A. Doyle, on the 30th of December, 1863, voluntarily assigned all his property to one James Doyle, for the benefit of his creditors ; that afterwards (March 7th, 1864), on the petition of the plaintiff and others of said Doyle’s creditors, said James Doyle was, by this Court, removed from his office of assignee of said Philip A., and this defendant appointed in his stead; and that said James, on his removal, paid over to this defendant the monies in his hands, received by him for property sold by him a few weeks after the assignment, including certain merchandize originally purchased by said Philip A. of the plaintiff, between the 26th day of November and the 24th day of December, 1863 ; and that no demand, either for said goods or the proceeds of them, had ever been made by the plaintiff upon the defendant, or his predecessor, prior to the service of the writ in tbis case, which bore date the 15th of October, 1864. The plaintiff alleged — and submitted evidence to show — that the said Philip A. Doyle obtained possession, of the said goods by means of fraudulent representations, and with an intent not to pay for them, and upon the proofs and admissions, claimed a verdict for the amount received as aforesaid by James Doyle for the goods thus obtained, and by him paid over to the defendant, $1,432.27 in amount. The notes of said Doyle, held by the plaintiff, were impounded in Court at the trial.
    The jury returned a verdict for the plaintiff, whereupon the defendant filed exceptions to certain of the Judge’s instructions, and, for alleged error therein, asked a new trial. The exceptions are substantially embodied in the three specifications submitted by the defendant’s counsel in his argument.
    Payne, for the defendant:—
    A new trial is asked by the defendant in this cause—
    I. . Because the Court ruled that the plaintiff could maintain this action without proving that the defendant had expressly promised to pay to him the proceeds of the goods in question. The goods in question were assigned by Philip A. Doyle to James Doyle, and, by James Doyle, sold with the knowledge and assent of the plaintiff, and the prooeeds were, by James Doyle, paid over to the defendant. When the plaintiff permitted the sale of the goods by James Doyle, he elected to treat the sale to Philip A. Doyle as valid, and cannot now be permitted to say that it was not, and therefore there can be no implied promise on the part of the petitioner to pay the proceeds to the plaintiff, and no express promise is pretended.
    II. Because the Court ruled that the plaintiff could maintain this action without proof of a previous demand of the proceeds in question, by the plaintiff, of the defendant. The goods in question came lawfully to the possession of Philip A. Doyle and of James Doyle, and the plaintiff could not have maintained replevin for the goods, or trover for their value, against either, without previous notice and demand. A fortiori, he cannot maintain assumpsit against the plaintiff without notice and demand. Duval & Inglehart v. Mowry, 6 R. I. 484.
    III. Because the Court charged the jury, that it was the plaintiff’s duty to elect, within a reasonable time after the discovery of the fraud, wbetber. be would or would not confirm tbe sale, and tbat any unreasonable delay in tbat particular was evidence of an election not to confirm tbe sale, and left it for tbe jury to say wbetber be bad elected to confirm tbe sale. Whereas, tbe Court should have instructed tbe jury tbat, under tbe admitted facts in this case, it was a conclusive presumption of law tbat tbe plaintiff bad elected to confirm tbe sale.
    IY. Because, in finding tbat tbe plaintiff did not elect to confirm tbe sale, tbe verdict was against tbe evidence and tbe weight thereof.
    
      Eames, for the plaintiff:—
    I. Tbe money in tbe defendant’s bands, arising from tbe Sale, by tbe assignee of P. A. Doyle, of tbe plaintiff’s goods, obtained by P. A. Doyle by fraudulent representations, belonged to tbe plaintiff; and, without any express promise by tbe defendant, tbe law implies a promise, on bis part, to pay it over to tbe plaintiff. Fahenstock & Go. v. Baily & Varnon, 3 Met. (Ky.) 48 ; McQueen el al. v. 'State Bank, 2 Ind. 413 ; Lockwoodv. Kilsea, 41 N H. 185,188; Wilson v. Sergeant, 12 Ala. 778 ; Hawley v. Lage, 15 Conn. 52 ; Ex parte Wendell, assignee of Brown, 2 Story 'IT. S. C. C. 360; Palmer v. Thayer, 28 Conn. 237 ; Batcliffe v. Longs-ton, 18 Md. 383, 390, 391.
    II. No demand for tbe money in tbe defendant’s bands, other than tbe demand made by tbe service of tbe writ, was necessary. A demand in this case, upon tbe defendant, at any time when tbe funds are within bis control, is sufficient. Fahnestock & Co. v. Baily & Varñon, 3 Met. (Ky.) 48; Thurston v. Blanchard, 22 Pick. 18 ; Hawley v. Lage, 15 Conn. 52 ; Hunter v. Hudson Biver Iron, &c., Go. 20 Barb. 499.
    TTT. Tbe impounding in court, at tbe opening of tbe plaintiff’s case upon tbe trial, of tbe notes of P. A. Doyle, payable to tbe order of tbe plaintiff and received by him for bis goods fraudulently obtained by P- A- Doyle, was tbe only tender of tbe notes required to be made to enable tbe plaintiff to maintain bis action. There is no pretence tbat either Doyle or bis creditors have suffered any injury by the plaintiff’s retention of tbe notes until they were impounded in C.PfP-’b Duval & Inglehari 
      v. Mowry, 6 E. I. 479, 483, et seq.; Gatling y. Newell etal. 9 Ind. 572-577; Fraschievis v. Henriques etal. 36 Barb. 276; Thurston y. Blanchard, 22 Pick. 18.
    IY. Tbe instructions of tbe Court, upon tbe question of tbe plaintiff being estopped by bis acts to claim the proceeds of tbe goods, was, in all respects, correct. Gatling y. Newell et al. 9 Ind. 572, 578 ; Downer y. Smith, 32 Yt. 1; Taymon v. Mitchell, 1 Md. Cb. 496 ; Duval & Tnglehart y. Mowry, 6 E. .1. 484.
    Y. Tbe evidence fully sustains tbe verdict. 1. It is clearly established by tbe weight of evidence that tbe goods were obtained of tbe plaintiff by tbe false and fraudulent representations of P. A. Doyle, and also that be purchased tbe goods with tbe intent not to pay for them. 2. Tbe plaintiff disaffirmed tbe contract within a reasonable time after discovering tbe fraud. Tbe fraud was not discovered until after tbe assignment. Tbe goods were sold by tbe assignee within two weeks of tbe assignment, and tbe action was brought before tbe assignee bad parted with tbe money arising from tbe sale.
   Durfee, J.,

delivered the opinion of tbe court.

1. Tbe defendant, being in tbe place of tbe voluntary assignee of Philip A. Doyle, could have no better right to tbe property assigned than Doyle himself. Doyle, according to tbe finding of tbe jury, was a fraudulent purchaser, and therefore held tbe property subject to the right of tbe plaintiff to disaffirm tbe sale and reclaim it. Subject to this right it passed to tbe assignee, and when tbe assignee sold it, tbe proceeds were in bis bands subject to tbe same right, and so likewise passed into tbe bands of tbe defendant. Tbe plaintiff having chosen to disaffirm tbe sale, those proceeds were thenceforth monies in tbe defendant’s bands belonging to tbe plaintiff, and we see no reason why tbe plaintiff should not, according to tbe general rule in such a case, be entitled to recover them, in an action of assumpsit, on an implied promise on tbe part of tbe defendant to pay them over to him.

2. Tbe defendant contends that'the plaintiff could not maintain trover or replevin without a previous demand, and that therefore be cannot, without such demand, maintain assumpsit. But we do not think such demand would be necessary even in trover or replevin. The law on this point is laid down in Thurston v. Blanchard, 22 Pick. 18. The plaintiff in that case sued in trover for goods sold on fraudulent representations, and it was objected that the suit could not be maintained without previous demand. But the Court held the contrary, and Shaw, C. J., delivering' the opinion, said: “ Such demand and a refusal to deliver are evidence of a conversion when the possession of the defendant is not tortious, but where the goods have been tortiously obtained, the fact is sufficient evidence of conversion. Such a sale, obtained under false and fraudulent representations, may be avoided by the vendor, or he may insist that no title passed to the vendee, or any person taking under him, other than a bona fide purchaser for value and without notice, and in such a case the plaintiff may maintain replevin or trover for his goods.” In this case the conversion is proved, not only by the fraudulent purchase of the goods, but also by their subsequent sale by the assignee of the purchaser. Neither do we think it was necessary that the notes given by Doyle should have been tendered to the defendant before commencing the action. It was sufficient, as decided in Duval & Inglehart v. Mowry, 6 R. I. Rep. 479, that they were produced to be impounded at the trial.

3. Inasmuch as the money for which this suit was brought was still in the defendant’s hands at the commencemont thereof, and there is no evidence that he had been, in any way, prejudiced by the plaintiff’s delay in bringing it, we do not think it was error in the Judge who tried the case, to refuse to rule, as a matter of law, that the plaintiff was estopped from prosecuting his claim for the money in question.

4. We do not think the verdict is so palpably erroneous as to entitle us to set it aside.

M.otion dismissed.  