delivered the opinion of the court, October 5th, 1885.
The plaintiff, at the trial of this case, offered to prove that G. G. Landis, at the time of the purchase of the cigars in suit, represented that he had just arrived at the age of tweuty-one years, and was about to engage in business, on bis own account, at Lima, Ohio, and that his father Jacob R. Landis, the defendant, and one N. N Bender were “backing him in the business; ” that by means of these representations he obtained the goods; that subsequently, when the cigars were attached for tins and other debts, lie pleaded bis minority, and the plaintiff was defeated in the action on that ground. The refusal of this offer constitutes the principal assignment of error.
It is admitted, that at the time of the purchase of the cigars, Landis, the sou, was in fact a minor; that the representations made by him, in this regard, were wholly untrue and it is not pretended that there was anything in his appearance, or otherwise, to put parties dealing with him on their guard. It cannot be doubted that a minor who, under such circumstances, obtains the property of another, by pretending to be of full age and legally responsible, when in fact he is not, is guilty of a fraud by false pretence, for which he is answerable, under the criminal law: 2 Wh. Cr. Law, 9th ed., 1149.
A contract, induced by such fraud as does not involve a public wrong, the ad justment of which is against public policy, is in general voidable only, not void, and the party defrauded may at his option confirm or repudiate it; the contract only bepomes void, after it has been avoided; therefore, in the case of a sale of goods induced by the fraud of the vendee, the vendor may, excepting in the cases mentioned, sue in assumpsit for the price, in affirmance of the contract, or in trover or replevin, in disaffirmance of it. But until the vendor has done some act to disaffirm the transaction, the property vests in the vendee ; therefore it is, that an innocent transferee, for value, takes the title; the mere fact that the contract may be after-wards rescinded does not affect its intermediate efficiency. In eases of fraud from false personation it has been held, that no title passes, but this distinction arises out of the consideration, that no contract is in such case made with the party personated, and none is contemplated with the false impersonator; the title therefore remains in the vendor, and the transaction is wholly inoperative even as to third persons. The general rule as drawn from all the cases and stated in Benjamin on Sales, p. 588, is as follows : Whenever goods are obtained from their *208owner by fraud, we must distinguish whether the facts show a sale to the party guilty of the fraud, or a mere delivery of the goods into his possession, induced by fraudulent devices on his part; that is to say, whether the owner intended to transfer both the property in, and the possession of, the goods to the person guilty of the fraud, or to deliver nothing more than the bare possession ; in the former case, there is a contract of sale, however fraudulent the device, and the property passes; but not in the latter case.
It is doubtless true, that under the admitted facts of the case at bar, the title to the cigars in controversjr passed from Neff, the plaintiff, to Landis, the purchaser; the transaction presents all the requisites of an actual sale; the manifest design of the parties was to pass the property, as well as the possession; but if the sale was induced by the artifice and fraud of the vendee, the vendor had an undoubted right, on discovery of that fraud, to repudiate the contract and proceed by replevin for the possession of the property.
The minority of Landis, and his consequent legal 'irresponsibility, were first asserted and definitely ascertained in the domestic attachment, and the plaintiff appears to have pursued the remedy by replevin promptly, when the fraud was ascertained. The fact that Neff parted with the property, on the terms of an absolute sale, relying upon an express promise of Landis to pay when the cigars were received at Lima, is of no avail to defeat him in this action, as the learned court would seem to have supposed, if that sale and delivery were brought about by the fraud of the vendee ; the plaintiff’s reliance upon a promise to pay would not purge the transaction of the fraud, upon which the promise was accepted.
The learned court would appear to have assumed, that to recover in this case, it was necessary to establish a fraudulent collusion between the father and the son. If the fraud of G. G. Landis be admitted or shown, the defendant could have no title to the cigars, unless he obtained them bona fide and for a valuable consideration, and the burden •would be upon him to prove the good faith and fairness of the transaction.
No opinion was filed bjr the court, either at the entry of the non-suit, or on the discharge of the rule, and it is difficult to determine the exact ground upon which these offers were rejected ; the court would, however, appear to have supposed that the plaintiff, having parted with the property by the sale, to recover it again must of necessity establish a fraudulent collusion between the father and son, in the original purchase. If this was the view which the court had of the case, it was clearly erroneous.
The testimony of John A. Krafft, as offered in reference to *209tlie alleged transaction between himself and G. G. Landis, in reference to frauds of a precisely similar nature, perpetrated by the same person, at or about the same time, on others, as it tended to establish a system and to show that the act here complained of was but one in a connected series of frauds, was clearly admissible on the question of intent.
The several offers of the plaintiff were, wo think, improperly excluded.
The judgment is, therefore, reversed and a venire facias de novo awarded.