Dellone v. Hull

Bartol, C. J., delivered the opinion of the Court. The appellants proceeded against the appellee by attachment under the Act of 1864, ch. 366, to recover a sum of money alleged to be due for goods sold and delivered. The voucher produced with the affidavit is an account for goods sold, and the short note states that the suit is insti tuted to recover money due and owing from the defendant to the plaintiffs for goods bargained and sold by the plaintiffs to defendant. The proceeding was instituted on the 7th day of July 1876.

The goods were sold on the 10th day of June 1876 on a credit of 90 days. The defendant being summoned appeared by attorney and pleaded : First, “ that he never was indebted as alleged.” Second,That the above is based upon a cause of action which was not due and owing to the plaintiffs at the time the above suit was brought and is not now due and owing.” At the trial evidence was offered by the plaintiffs tending to prove that at the time of the purchase, “ the defendant fraudulently intended to break up the business he was then carrying on, before the expiration of the said ninety days, and to secrete and dispose of his property so that the plaintiffs could not enforce payment of their claim at the expiration of said ninety days, and intended to cheat and defraud the plaintiffs of their said goods, and also tending to prove that the defendant did on the nights of ¹¹⁵ the 4th and 5th of July 1876 clandestinely remove his property, break up his business, and fraudulently conceal and dispose of his property prior to the 6th day of July 1876 ; that the plaintiffs could not enforce the payment of their said claim, and that defendant was therefore possessed of no property.” The question presented by the prayers is whether the fraudulent intent of the defendant at the time of the purchase, so to secrete and dispose of his property before the expiration of the ninety days, if found by the jury, entitles the plaintiff to maintain this suit. The appellants contend that the credit being obtained by fraud, the right of action accrued immediately. There is no doubt of the proposition that “ where goods are obtained by means of a fraudulent purchase the vendor has a right to disaffirm the contract so