[239]*239The opinion of the court was delivered by
Redfield, Ch. J.
In regard to the form of the judgment, the statute is explicit, when the verdict is entire for either party. And where part of the goods are properly replevied and part unlawfully, the verdict must be for 'both parties; for one, damages and costs, as to that portion upon which he maintains his replevin; and as to the defendant, for the return of the property improperly taken by the writ, damages for its detention, and costs. And if this is the proper form of the verdict, the judgment must follow the verdict, and the costs must be apportioned according to equity.
In such a case, the general power of the court will extend,' no doubt, to set off the damages and costs, and the issuing execution for the balance, where no reason exists for a contrary course. The case of Brown v. Smith, 1 N. H. 36, is a full authority for this form of judgment, both as to damages and costs. The same seems to be the law of Mass., Powell v. Hinsdale, 5 Mass. 343. 18 Vt. 504, 1 Pick. 357. This change in the form of the judgment could all be effected, in this court, except that in relation to the apportioning of the costs, which could only be done properly in the court below; and for that purpose, at least, the case must be remanded to the County Court.
As to the merits of the case, there does not seem to have been any question made, in the County Court, in regard to the. recision of the contract. If that had been made a distinct question there, very likely the facts upon that point being more fully stated, it might appear somewhat different from what it does now. That being so, we feel justified in making pretty liberal constructions of the case, upon this point, in favor of the judgment below.
The party, who would rescind a contract of this kind, must, no doubt, be in a condition to put the other party in statu quo. If, for instance, he had parted with the note, he could not retain the property, even when he proved the most’unequivocal fraud. And upon the trial, he should, if required so to do by the opposite party, furnish the note, to be disposed of, under the direction of the court.
There is nothing in the case to show that he had made any disposition of the note, or that any other impediment existed to the perfect restoration of the rights of the vendee to his situation, before the sale. If this existed, and was relied upon, it should have [240]*240appeared in the case. We are bound to make all reasonable presumptions in favor of the judgment below. So too, in regard to surrendering the note upon trial, if the party deems it important for his security, he could even move it in this court, after judgment is finally affirmed, and have the note surrendered. That has often been required, and sometimes in this court even, as a condition precedent to the party’s taking execution on a judgment upon a collateral remedy. But it does not seem to have been even insisted upon, either in the County Court, or in this court.
And so long as the vendee obstinately resisted the giving up of the goods, upon any condition, maintaining the perfect validity of the sale, in all respects, and as the vendor would clearly not be required to surrender the securities until he could obtain a surrender of the goods, the mere form of offering the note, in exchange for the goods, after they had been assigned to a third party, and both he and the original vendee firmly insisted upon keeping their hold upon them, would seem very idle. We are not prepared to say, that we should regard it as at all necessary to the recision of the contract, upon the part of the plaintiff, if the facts in the case are sufficient to justify the recision in other respects.
The character and degree of the fraud shown, and the form in which the issue upon this point was submitted to the jury, are the only grounds upon which we have entertained serious question.
We might say here, perhaps, that it seems to be conceded in the argument, or very nearly so, and it is certainly so treated in some of the cases referred to, that a creditor, who attaches property obtained by fraudulent practice or misrepresentation, does not acquire Iany better right to hold it, as against the former owner, who has been thus fraudulently deprived of it, than the fraudulent vendee had. And if so, it seems to follow, that a mere assignment of the goods, in security of a pre-existing debt, could confer no greater right than an attachment; as there is no new consideration for the assignment, the assignee only takes the right of the assignor.
In regard to the fraud, the question must be determined a good deal upon the cases. There is doubtless a considerable difference between a fraudulent representation, in regard to the extent of one’s property, in the general and the detail. In one case you have the means of forming your own opinion, and in the other you trust altogether to the estimate of one’s own resources, which is proverb[241]*241ially a very poor reliance.' But how far a man is justified in asserting clear falsehoods, even upon matters resting in opinion, may be questionable. One may as surely perpetrate fraud in the one as the other mode of misrepresentation. The case of Hodgden v. Hubbard recognizes the case of Buffington v. Gerrish, 15 Mass. 156, as sound law ; and this latter case holds, that the attaching creditor stands in the place of his debtor only, if he was a creditor prior to the purchase of the goods, and consequently that replevin will lie for the vendor who has been deceived as to the credit of the vendee.
And it will be borne in mind, that this case involves no question of retaining the securities for the goods, and thus affirming the contract to that extent, and at the same time sustaining an action for fraud against the party, for obtaining them; and thus having a double remedy for. the goods against the same party, one in contract, and one in tort, which are in their nature altogether inconsistent with each other. It is upon this ground mainly, that it has been denied the party to lie by, and not offer to rescind the contract of sale, until it becomes too late for the party to do that, and the contract thus becomes irrevocably affirmed and confirmed, so that it is, as between the parties, a sale, and nothing else, fully acquiesced in by by both parties. Under these circumstances, it has been denied the party to seek out another collateral, independent, and inconsistent remedy, in tort. If the party wishes to sustain an action in tort, for the fraud, he must, on discovering the fraud, offer to rescind the contract of sale at the earliest possible moment, and thus abandon his remedy by contract. He may thus sustain replevin, or trover, or trespass on the case perhaps, on sufficient proof of the fraud. But it has been held, with great propriety, we think, that the party shall not hold on upon securities for the price, and then, when the debtor becomes unable to pay, invoke the aid of the court, to grant him a remedy in tort, so as to enable the party to obtain redress against the. body of his debtor, still retaining a coordinate remedy against his property. The case of Dyer v. Tilton, 23 Vt. 313, is not put altogether upon this ground. That case was effectually concluded as one of contract, by the judgment. And so equally is every case of sale, where the vendor does not offer to rescind, at the earliest discovery of the fraud, or opportunity to discover it. By retaining the securities, where any such are giv
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[239]*239The opinion of the court was delivered by
Redfield, Ch. J.
In regard to the form of the judgment, the statute is explicit, when the verdict is entire for either party. And where part of the goods are properly replevied and part unlawfully, the verdict must be for 'both parties; for one, damages and costs, as to that portion upon which he maintains his replevin; and as to the defendant, for the return of the property improperly taken by the writ, damages for its detention, and costs. And if this is the proper form of the verdict, the judgment must follow the verdict, and the costs must be apportioned according to equity.
In such a case, the general power of the court will extend,' no doubt, to set off the damages and costs, and the issuing execution for the balance, where no reason exists for a contrary course. The case of Brown v. Smith, 1 N. H. 36, is a full authority for this form of judgment, both as to damages and costs. The same seems to be the law of Mass., Powell v. Hinsdale, 5 Mass. 343. 18 Vt. 504, 1 Pick. 357. This change in the form of the judgment could all be effected, in this court, except that in relation to the apportioning of the costs, which could only be done properly in the court below; and for that purpose, at least, the case must be remanded to the County Court.
As to the merits of the case, there does not seem to have been any question made, in the County Court, in regard to the. recision of the contract. If that had been made a distinct question there, very likely the facts upon that point being more fully stated, it might appear somewhat different from what it does now. That being so, we feel justified in making pretty liberal constructions of the case, upon this point, in favor of the judgment below.
The party, who would rescind a contract of this kind, must, no doubt, be in a condition to put the other party in statu quo. If, for instance, he had parted with the note, he could not retain the property, even when he proved the most’unequivocal fraud. And upon the trial, he should, if required so to do by the opposite party, furnish the note, to be disposed of, under the direction of the court.
There is nothing in the case to show that he had made any disposition of the note, or that any other impediment existed to the perfect restoration of the rights of the vendee to his situation, before the sale. If this existed, and was relied upon, it should have [240]*240appeared in the case. We are bound to make all reasonable presumptions in favor of the judgment below. So too, in regard to surrendering the note upon trial, if the party deems it important for his security, he could even move it in this court, after judgment is finally affirmed, and have the note surrendered. That has often been required, and sometimes in this court even, as a condition precedent to the party’s taking execution on a judgment upon a collateral remedy. But it does not seem to have been even insisted upon, either in the County Court, or in this court.
And so long as the vendee obstinately resisted the giving up of the goods, upon any condition, maintaining the perfect validity of the sale, in all respects, and as the vendor would clearly not be required to surrender the securities until he could obtain a surrender of the goods, the mere form of offering the note, in exchange for the goods, after they had been assigned to a third party, and both he and the original vendee firmly insisted upon keeping their hold upon them, would seem very idle. We are not prepared to say, that we should regard it as at all necessary to the recision of the contract, upon the part of the plaintiff, if the facts in the case are sufficient to justify the recision in other respects.
The character and degree of the fraud shown, and the form in which the issue upon this point was submitted to the jury, are the only grounds upon which we have entertained serious question.
We might say here, perhaps, that it seems to be conceded in the argument, or very nearly so, and it is certainly so treated in some of the cases referred to, that a creditor, who attaches property obtained by fraudulent practice or misrepresentation, does not acquire Iany better right to hold it, as against the former owner, who has been thus fraudulently deprived of it, than the fraudulent vendee had. And if so, it seems to follow, that a mere assignment of the goods, in security of a pre-existing debt, could confer no greater right than an attachment; as there is no new consideration for the assignment, the assignee only takes the right of the assignor.
In regard to the fraud, the question must be determined a good deal upon the cases. There is doubtless a considerable difference between a fraudulent representation, in regard to the extent of one’s property, in the general and the detail. In one case you have the means of forming your own opinion, and in the other you trust altogether to the estimate of one’s own resources, which is proverb[241]*241ially a very poor reliance.' But how far a man is justified in asserting clear falsehoods, even upon matters resting in opinion, may be questionable. One may as surely perpetrate fraud in the one as the other mode of misrepresentation. The case of Hodgden v. Hubbard recognizes the case of Buffington v. Gerrish, 15 Mass. 156, as sound law ; and this latter case holds, that the attaching creditor stands in the place of his debtor only, if he was a creditor prior to the purchase of the goods, and consequently that replevin will lie for the vendor who has been deceived as to the credit of the vendee.
And it will be borne in mind, that this case involves no question of retaining the securities for the goods, and thus affirming the contract to that extent, and at the same time sustaining an action for fraud against the party, for obtaining them; and thus having a double remedy for. the goods against the same party, one in contract, and one in tort, which are in their nature altogether inconsistent with each other. It is upon this ground mainly, that it has been denied the party to lie by, and not offer to rescind the contract of sale, until it becomes too late for the party to do that, and the contract thus becomes irrevocably affirmed and confirmed, so that it is, as between the parties, a sale, and nothing else, fully acquiesced in by by both parties. Under these circumstances, it has been denied the party to seek out another collateral, independent, and inconsistent remedy, in tort. If the party wishes to sustain an action in tort, for the fraud, he must, on discovering the fraud, offer to rescind the contract of sale at the earliest possible moment, and thus abandon his remedy by contract. He may thus sustain replevin, or trover, or trespass on the case perhaps, on sufficient proof of the fraud. But it has been held, with great propriety, we think, that the party shall not hold on upon securities for the price, and then, when the debtor becomes unable to pay, invoke the aid of the court, to grant him a remedy in tort, so as to enable the party to obtain redress against the. body of his debtor, still retaining a coordinate remedy against his property. The case of Dyer v. Tilton, 23 Vt. 313, is not put altogether upon this ground. That case was effectually concluded as one of contract, by the judgment. And so equally is every case of sale, where the vendor does not offer to rescind, at the earliest discovery of the fraud, or opportunity to discover it. By retaining the securities, where any such are giv[242]*242en, or what is the same thing, by not offering to rescind the contract at the earliest opportunity, the contract becomes binding upon both parties, to the fullest extent. It then involves an absurdity, to allow also a collateral remedy in tort, for the fraud, which the party has conclusively waived, by acquiescing in the contract of sale. It is not so when the fraud is perpetrated by the fraudulent representation of a third party, not connected with the contract. It is proper in such cases, that each party should be liable according to his several participation in the transaction, the one in contract for the price, the other for his fraudulent representation. But, that the same party should be held, by these inconsistent remedies, is certainly unreasonable. But no such question directly arises in the present case. The only remaining question is one of fraud; and it seems to us, that although much less reliance is due to one’s unaided representation of his own ability to pay, than to that of a third party, it cannot be assumed that it is impossible to perpetrate such a fraud, in this mode, as to entitle the vendor to rescind a sale of goods, The instructions to the jury seem to have been proper in this case, and the rest is matter of fact, for the jury. The judgment is reversed and the case remanded, to have the County Court enter the proper judgment, according to the verdict, and apportion the costs equitably.