(dissenting):
The contract of sale was fully executed by delivery of the property. It was the intention of both the vendor and vendees that on delivery of the property the title thereto should pass to the latter. Such was the legal effect of the contract of bargain and sale, subject, however, to the right of the seller to rescind the contract and reclaim the property because of the fraudulent misrepresenta*183so as did nothing in disaffirmance of the sale the legal title remained in Fisher & Co., or those who claimed under them.
as to .protect innocent parties who may in good faith deal with fraudulent purchasers concerning the property. The authorities are in harmony with these views. Suppose after the goods were received by Fisher & Co. at their store in Buffalo a customer of theirs, without any notice of the fraud, had purchased one of the stoves in good faith and paid for it, who can doubt but that he would have acquired a perfect title as against the plaintiff. (Saltus v. Everett, 20 Wend., 279; Mowrey v. Walsh, 8 Cow., 238; Stevens v. Hyde, 32 Barb., 171; Rowley v. Bigelow, 12 Pick., 306; Nichols v. Michael, 23 N. Y., 264.) In this case it not to be claimed that the defendant was a purchaser for value so as to acquire a perfect title as against the plaintiff, as his bid for the property at the sheriff’s sale was not paid in cash, but was applied on pre-existing debt which he had against Fisher & Co. represented the judgment.
defendant’s position is this, that as against Fisher & Co. the sale was voidable at the instance of the plaintiff, and until it elected rescind the same, parties dealing with Fisher & Co. concerning property, and acting in good faith and ignorant of the fraud, cannot be charged as tort feasors by the mere act of purdhase. That as the levy and sale was, prior to any attempt by the plaintiff avoid the sale and reclaim the property, his purchase of the prop-was not wrongful and did not in law amount to a conversion, that his possession was lawful until he had notice of the fraud, that the plaintiff repudiated the sale on the ground of fraud and demanded from him a return of the property.
There is no ground for saying that the defendant participated in fraud, or that he had any knowledge of it prior to his purchase; therefore, he could not be charged as a wrong-doer and be held of .a conversion, until after a proper demand. This the failed to make before suit brought.
finds, as a fact, that before the commencement of action the plaintiff demanded possession of said goods, and the defendant refused to surrender the same or any part thereof.
supported by the evidence, amounts to a conver*184But, in my opinion, the evidence does not support a so broad and unqualified as the same is expressed in the finding. demand, such as it was, did not take place until more than two years after the sale. There is no proof where the property then nor that the defendant had sold or transferred the same. The only item of evidence on the subject is found in the testimony 'of witness, the plaintiff’s agent, who says that he called on the defendant at his office in Buffalo,, at the corner of Main and Chippewa streets, and showed him an itemized bill of the goods which Fisher & Co. had previously purchased, and then in the words of the witness, “ I demanded the 'goods represented on the bill on behalf of the Co-operative Foundry Company. He said he had no goods from the Co-operative Foundry Company; nothing else; I left the bill of the goods with him.” From other portion's of the evidence, it appears that the goods mentioned in the bill embraced all the goods sold to Fisher & Co., after the fraudulent representations were made. Of such goods many parcels had been sold ‘by Fisher & Co., before the levy, in value amounting to $400. The goods purchased by the defendant at the sale included a large amount of property which the plaintiff never owned, and which had become a part of the stock and goods sold by the sheriff, and bought by the defendant in one lot, on a single bid, in amount $4,755.48.
The defendant was not notified that the plaintiff nor why a demand was made upon him for the goods. He not given a suitable opportunity to comply with the same, it insufficient because it was excessive. An innocent purchaser of property at á sheriff’s sale cannot be so easily made a wrong-doer treated as a tort feasor. The law is not so severe and unjust. The defendant did not put forth any claim of title to the property the time the demand was made. In his reply to the demand he stated the truth “ that he had no goods from the plaintiff.!’ ‘Where mere words are relied upon to prove a conversion, they must be uttered under such circumstances in proximity to the property as to show a defiance of the owner’s rights, a determination to exercise dominion and control over the property, and to exclude the owner from the exercise of his rights. The remarks of the court in Gillet Roberts (57 N. Y., 28), relative to the subject of conversion byan *185innocent purchaser, are applicable, to this case, viz.: “ The rule is a reasonable and just' one,* that an innocent purchaser of personal' property from a wrong-doer, shall first be informed of the defect of his title, and have an opportunity to deliver the property to the true owner before he shall be made liable as a tort feasor for a. wrongful conversion.”
The case of Pease v. Smith (61 N. Y., 475) holds nothing to the contrary. There the purchase was at a private sale, from a wrongdoer who had no title, nor pretense of title, and besides the defendant had, after his purchase, sold the property, and this act of ownership, together with the other fact, it was held amounted to a conversion. (See, also, Rawley v. Brown 18 Hun, 456; Storm v. Livingston, 6 Johns., 44.)
The plaintiff elected to stand by the sale, when it commenced its suit against Fisher & Co., for the purchase-price of the goods. Such election liad the effect to confirm the defendant’s title to the property. At that time the plaintiff was fully informed of the fraud which had been perpetrated upon it. In the face of such knowledge they made an election to stand by the contract of sale, from which they cannot recede. That action was still pending when this was commenced. (Moller v. Tuska, 87 N. Y., 166; Morris v. Rexford, 18 id., 552.)
This rule, so long established in this State, is the same in Massachusetts, and was applied in Ormsby v. Dearborn (116 Mass., 386), Seavey v. Potter (121 id., 297).
I am for reversing the judgment.
Judgment affirmed.