Webster v. Stearns

75 A. 983, 75 N.H. 451, 1910 N.H. LEXIS 13

• Court: Supreme Court of New Hampshire
• Decided: March 1, 1910
• Status: Published

Opinion

Walker, J.

If, as against Jenney’s creditors, the transaction between him and the plaintiff might be deemed a sale with a secret trust in favor of the plaintiff, while Jenney retained possession of the property, its fraudulent character was purged when the plaintiff asserted his right under the contract and took possession of the property which, as against Jenney, belonged to him. Weeks v. Fowler, 71 N. H. 518. By that act the contract was terminated, and at the time of the attachment Jenney had no possession of the goods upon which fraud could be predicated as a matter of law. Weeks v. Fowler, supra. Nor did the defendant’s appointment as a receiver in bankruptcy of Jenney’s estate furnish any justification for his seizure of the plaintiff’s property and retention of the possession thereof. Truda v. Osgood, 71 N. H. 185.

Judgment for the plaintiff.

All concurred.