majority">Leonard,

J.—The allegations of the complaint, and the facts mentioned in the affidavits upon which the injunction herein was allowed, present a case wherein an interpleader, by the settled rules and practice in equity, cannot be sustained.

The plaintiff, by his own showing, was a bona-fide purchaser of the merchandise, for which he has given his check in part payment, and remains liable, in account for the residue of the price, to the defendant Hitz as assignee of the vendor.

The plaintiff alleges that two firms residing in Boston, who are made defendants herein, were induced to sell the merchandise in question, through the frauds of the party who sold to the plaintiff, as those firms allege, and that they now claim the merchandise, or the proceeds • thereof in the hands of the plaintiff.

It is a well-settled principle, that a bailee cannot deny the title of his bailor, nor can a vendee deny title of his vendor. (Marvin a. Elwood, ll Paige, 365; Shaw a. Coster, 8 Ib., 339; Lund a. Seaman’s Bank for Savings, 37 Barb., 129.)

The Boston firms have no right of action against the plaintiff, at law, to recover the price of their merchandise. The plaintiff, being a bona-fide purchaser, will be protected against the claims of those firms, unless they return him his check; and, in that case, they could maintain replevin for the goods, or an equitable action against the plaintiff and the alleged fraudulent purchasers and their assignee, to reach the unpaid contract price of the merchandise in the hands of the plaintiff, and also to compel a surrender of the check in the hands of any third party who should not be a bona-fide holder for value. Such action or actions must be commenced, however, within a reasonable time, or the plaintiff* will be justified in paying the money to the parties who made the actual sale and delivery of the merchandise to him.

It is no part of the duty of the plaintiff to embark in a liti*440gation for the purpose of saving from loss the parties alleged to have been defrauded.

Interpleader is not allowed for any such purpose. It is allowed only to those who are in danger of loss by an inability to determine to whom the money or property in question belongs, when there is no superior duty to either claimant.

It is the business of the party who has voluntarily parted with his goods, although they were obtained by a fraud (not amounting to a-felony) which would be sufficient to vitiate the transaction as against him, to seek his satisfaction or indemnity in such a manner as not to inflict loss or injury upon an innocent purchaser from his fraudulent vendee. The defrauded party cannot obtain relief upon any other terms as against a purchaser of the merchandise in good faith.

The defrauded firms claim the merchandise, or its proceeds in the hands of the plaintiff, by an independent title. It is the duty of the plaintiff to afford these firms every facility, and all the information in his possession, to enable them to obtain their just rights; but if, after notifying them of every fact in relation to the transaction within his knowledge, those firms shall neglect or omit to take the remedies open to them, until the plaintiff can no longer defer payment without a breach of the duty owing by the vendee to his vendor, or until the vendee is in default to his vendor, then the plaintiff will have performed all the duty which the defrauded firms can claim from him, and his further liability to them will cease.

The law also requires that the plaintiff should be ignorant of the rights of the respective claimants. It is true, the complaint alleges that the plaintiff is ignorant in this respect, but it is entirely dear that he well knows his liability, as a vendee, to the party of whom he purchased the merchandise, and that it is not permitted to him to defend himself against the action, of the vendor (or his assignee, Hitz) by denying the title of his vendor, or by asserting a better and independent title in either of the Boston firms.

The plaintiff, by bringing this action, attempts indirectly to deny the title of his vendor. He alleges ignorance of a fact about which the law does not permit him to be ignorant, viz., the rights of the vendor against him, in order to give apparent jurisdiction in this action.

*441The complaint cannot, in my opinion, be sustained. Each of the defrauded firms must seek his own redress, by separate actions, in such manner as will afford full protection to the plaintiff, or discharge from liability on his part to his vendor, or the assignee of the vendor’s demands, whether arising on a check or upon account.

The order appealed from should be reversed, and the inj unction be dissolved. Costs to abide the event.

The plaintiff can make his application in respect to the fund paid into court, in the action wherein the deposit has been made.

Cleree, J., concurred.

Citation profile

How this case has been treated — in progress