Shearer v. Barrett

1 Hill & Den. 70

• Court: New York Supreme Court
• Decided: July 1, 1843
• Status: Published

Opinion

By the Court,

Bronson, J.

There can be no doubt that a ' sale of personal chattels, like every other contract, must be based upon some good consideration ; but it is not always necessary for the vendee to give direct evidence of a consideration. It may often be infered from the circumstances of the case. If the person who claims to be a purchaser has possession of the property, and can sho* that the former owner has acknowledged, either in writing or by paroi, that he has sold or assigned the goods to the person in possession, that will be prima facie evidence of a valid transfer of the title 5 and it will lie on the other party to show that there was no consideration for the sale. If this question had arisen between the plaintiff and his son Martin, it would, I think, have been enough for the latter to show himself in. possession, with the written acknowledgment of the plaintiff that he had relinquished and assigned over his title to the property. The onus would then have been upon the plaintiff to rebut this presumptive evidence of a valid contract of sale. /

The plaintiff did, in fact, give evidence to rebut the presumption of a valid sale to Martin. He proved that the writing was made for the purpose of authorizing Martin to exchange the horses for another horse ; and if the question now were between the original parties to the instrument, it may be conceded that the plaintiff would be entitled to recover.

But the defendant is a bona fide purchaser from Martin, without any notice of what passed between him and the plaintiff at thó time the writing was made. He found Martin in possession of the property, with a written acknowledg-. ment from, the plaintiff that he was the owner. After having thus furnished his son with sufficient prima facie evidence of a right to dispose of the property, the plaintiff can not recover against a third person who has acted upon that evidence, and purchased in good faith from the son. The consequences of the fraudulent conduct of Martin should fall on the plaintiff, who enabled him to do the wrong, rather than be visited upon an innocent purchaser. See Pickering v. Busk, 15 East, 38; Mowrey v. Walsh, 8 Cow., 238

(a); Root v. French, 13 Wend., 570; Saltus v. Everett, 20 Wend., 267.

On a bill of exceptions we can not inquire whether the verdict was against evidence, and I have, therefore, taken no notice of the evidence on the question of insanity.

New trial denied.

See Kewis v. Palmer & Hart, ante p. 68.