
    Frank La Manna and Others, Appellants, v. John Munroe and Others, Repondents.
    
      Proof of bona tides required of a transferee of goods obtained by false representations—who is a transferee for value — what is not reversible error in a charge to which no exception is taken.
    
    
      It seems, that in an action by the vendors of goods sold, upon the faith of alleged fraudulent representations, to recover them from persons claiming title under the vendee, the burden is upon the defendants to show that they purchased in good faith and for value.
    A charge that the plaintiffs must show, not only that the sale was induced by fraud, but also that the defendants were not bona fide purchasers of the goods for value, does not constitute reversible error where no exception to the charge was taken, and the evidence was ample to justify a finding that the defendants had sustained the burden of proof imposed upon them by the correct rule.
    An agreement made by the defendants, at the time of the transfer of the goods to them by the vendee, to extend the time for the payment of certain" of the vendee’s acceptances, which were then due and to become due, and not to ' bring any actions against the vendee on the negotiable paper which they held, constitutes a consideration sufficient to support the transfer, provided .the defendants were ignorant of the fraud practiced by the vendee.
    Appeal by the plaintiffs, Frank La Manna and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 19th day of December, 1898, upon the verdict of a jury, and also from an order hearing date the 14th day of December, 1898, and entered in said clerk’s office, denying the plaintiff’s motion for a new trial made upon the minutes. •
    This appeal was transferred from the first department to the second department. . ' ..
    
      George E. Waldo, for the appellants.
    
      W. Benton Crisp, for the respondents.
   Willard Bartlett, J.:

By this suit the plaintiffs sought to reclaim a lot of sardines which they were induced to part with, as they allege, by.the fraudulent misrepi’esentations' of one Rosenstein. The vendee subsequently transferred the sardines to the defendants, who claimed to. be purchasers in good faith without notice of the alleged fraud. There was enough evidence to go to the jury on both branches of the case ; that is to say, upon the question whether there was any fraud on the .part of Rosenstein in making the purchase from the plaintiffs; and upon the further question whether the defendants subsequently acquired the property as bona fide purchasers for value. There is no ground upon which we can interfere with the determination of these issues of fact in favor of the. defendants, unless the record discloses some legal error which affected the result.

I can find no such error.

It is said that the court erred in the instructions which were given to the jury concerning the burden of proof, and that it ignored the rule that “in a suit by the true owner to recover the goods against a person who claims title under the fraudulent vendee, the burden is upon the party claiming such title of proving that he is a purchaser in good faith and for value.” (Stevens v. Brennan, 79 N. Y. 254.) The instruction, which is the subject of this criticism, was to the effect that, before the plaintiffs could recover, they were not only bound to show a sale induced by false representations on the part of Rosenstein, but that they must go further and show, the jury “ that the defendants in this action were not bona fide purchasers of these goods for value.” No exception was taken to this' part, of the charge. The learned counsel for the plaintiffs did except to all those portions of the charge which submitted to the. jury .the question as to whether the defendants were bona fide purchasers; but the exception did not serve in any manner to indicate the objection which is now relied upon or to convey to the mind of the trial judge the idea that counsel believed he had erred in instructing the jury with reference to the burden of proof in the case. It is to he noted that the charge contains no express reference to the burden of proof; and it is hardly probable that the learned judge, in using the phrase quoted, could have had that question in mind. He was the counsel for the successful party in the ease of Stevens v. Brennan (supra), in which, as already shown, it was expressly held that the burden of proof in a case like this rested upon the party claiming to be a purchaser in good faith; and it is scarcely conceivable that if his attention had been directed to the matter by an appropriate exception, he would not have made the law on the subject perfectly clear to the jury.

At all events, as there is no exception which points to the instruction as erroneous; and as the evidence was ample to justify the jury in holding that the defendants had sustained the burden of proof under the correct rule, I do not think that the error, if there was one, should be allowed to disturb the verdict.

The other assignments of error upon which the appellants rely rest upon the proposition that the defendants could not be regarded as purchasers for value because they did not part with any money when they acquired the goods, but received them as security for an antecedent indebtedness. There was evidence, however, from which the jury could find that, at the time of the transfer, the defendants agreed to extend the time for the payment of certain acceptances of Rosenstein’s which were then due and to become due, and furthermore agreed not to bring any actions against Rosenstein on the negotiable paper which they thus held. This agreement constituted a fresh consideration at the time of the transfer and sufficed to confer a good title upon the defendants as against the true owners, provided the transferees were without any knowledge of the fraud by which they were induced to part with the goods. (Fuller v. Claflin, 51 Hun, 609.)

There should be an affirmance of the judgment and order appealed from.

All concurred.

Judgment and order affirmed, with costs.  