property covered by a chattel mortgage cannot successfully defend by showing that such property is subject to a prior mortgage in favor of a third person, and that the condition in the senior mortgage has been broken." The junior mortgagee, being entitled to the possession as against the defendant, may recover, notwithstanding the rights of the holder of the senior mortgage." A plaintiff suing as sole owner cannot recover where the evidence shows that he is a joint owner with third persons of the property in controversy.80

§ 2613. Fraudulent purchase.-Where the vendor is induced to part with his goods by the fraud of the vendee, and they are fraudulently detained by the vendee, the vendor may rescind the sale and recover possession of them by replevin.81 In many jurisdictions he may also recover them from others into whose hands they have gone, except an innocent purchaser for value, without notice.82 The fraudulent intent of the vendee may be proved as in other cases, and may be inferred from the circumstances surrounding the transaction.88 Evidence that the vendee, at the time he purchased the goods, was not able to pay for them and knew that fact, and that he intended not to pay for them, or had no reasonable expectation of being able to do so, justifies an inference that the purchase was fraudulent. So, proof that the purchaser bought with a design of not paying for the property has been held sufficient to establish a fraud that will enable the vendor

78 Koehring v. Aultman &c. Co., 7 Ind. App. 475, 483, 34 N. E. 30.

TO Koehring v. Aultman &c. Co. 7 Ind. App., 475, 483, 34 N. E. 30.

BO Bain v. Trixler, 24 Ind. App. 246, 56 N. E. 690.

81 Farwell v. Hanchett, 120 Ill. 573, 11 N. E. 875; McKinney v. First Nat. Bank, 36 Neb. 629, 54 N. W. 963; Parrish v. Thurston, 87 Ind. 437; Gulledge v. Slayden &c. Mills, 75 Miss. 297, 22 So. 952; Root v. French, 13 Wend. (N. Y.) 570, 28 Am. Dec. 482; Scott v. McGraw, 3 Wash. 675, 29 Pac. 260; Neff v. Landis, 110 Pa. St. 204, 1 Atl. 177.

82 Hacker v. Munroe, 176 Ill. 384, 52 N. E. 12; Farley v. Lincoln, 51 N. H. 577, 12 Am. R. 182; Williamson

v. New Jersey &c. Co., 29 N. J. Eq. 311; Weed v. Page, 7 Wis. 503; in some jurisdictions he must return or offer to return anything of value he may have received from the purchaser. See conflicting authorities cited in note 80 Am. St. 765.

83 Parrish v. Thurston, 87 Ind. 437; Brower v. Goodyer, 88 Ind. 572; Tennessee Coal &c. Co. v. Sargent, 2 Ind. App. 458, 28 N. E. 215; Abbott Tr. Ev. (2nd ed.) 870, § 4. 84 Peninsular Stove Co. v. Ellis, 20 Ind. App. 491, 496, 51 N. E. 105; Tennessee Coal &c. Co. v. Sargent, 2 Ind. App. 458, 461, 28 N. E. 215; Levi v. Kraminer, 2 Ind. App. 594, 28 N. E. 1028.

85

to recover back the goods, and evidence of misrepresentations by the purchaser as to his financial standing at the time of making purchases is competent, in connection with evidence that he was then insolvent, to establish a fraudulent intent.se It has also been held that it may be shown that a note of an insolvent maker transferred by the plaintiff to the defendant at its face value in payment of such property was represented by him to be the note of a person bearing the same name, who was not only solvent, but wealthy,87 but evidence that the defendant bought the goods in good faith for a valuable consideration is generally sufficient to defeat an action to recover them back on account of the fraud of another person to whom the plaintiff sold them and from whom the defendant purchased them.88

$2614. Damages.-When it is shown that the property was wrongfully taken and unlawfully detained, the plaintiff is entitled to recover nominal damages without proof of actual damage. The fact that the property was surrendered to the plaintiff soon after the action to recover it had been instituted does not destroy the plaintiff's right to recover nominal damages for its detention ;90 but, except as the plaintiff may be entitled to nominal damages, only compensatory damages can properly be assessed in replevin," although in some jurisdictions it seems that exemplary damages may be awarded to the defendant where the replevin action is vexatious and oppressive,92 and substantial damages should never be assessed in excess of the amount of actual damages proved.93 If the plaintiff fails to recover the property sued for he is not entitled to damages, and where the main issue was decided against him, the exclusion of evidence as to his loss of time and other elements of damages on account of being deprived of the property may be treated as harmless. Where the plaintiff recovers, however, he is usually entitled to recover under proper evidence the value of the use of the property for the time he was wrongfully deprived of

89 Bartlett v. Brickett, 14 Allen (Mass.) 62; 1 Sedgwick Dam. 88.

90 Robinson v. Shatzley, 75 Ind. 461; Card will v. Gilmore, 86 Ind. 428.

91 Hotchkiss v. Jones, 4 Ind. 260. 92 Washington Ice. Co. v. Webster, 68 Me. 449.

93 Stevens v. McClure, 56 Ind. 384; Hotchkiss v. Jones, 4 Ind. 260.

94 Smith v. Harris, 76 Ind. 104, 107.

it,95 and for its depreciation in value while wrongfully detained by the defendant."

§ 2615. Tax list as evidence.-A tax list sworn to by the plaintiff, which assumes to contain a schedule of all of his property, but omits the property in question, is admissible in evidence against him to disprove his ownership at the time the list was made. So, evidence. of the assessment and payment of the taxes and the like is generally admissible on the question of ownership.98 Such a list is also competent as impeaching evidence, where the plaintiff or witness who swore to it gives evidence that contradicts it at the trial;"" but in an action by a married woman to recover property seized on execution for a debt of her husband, a tax list in which the husband returned such property for taxation as belonging to him, is not admissible as original evidence against her,10 and if it is admitted to impeach the husband's testimony, the assessor may be called in support of such testimony and questioned as to the husband's statement regarding his wife's ownership at the time the list was made.101

* Butler v. Mehrling, 15 Ill. 488; Hartley State Bank v. McCorkell, 91 Iowa 660, 60 N. W. 197.

* Teel v. Miles, 51 Neb. 542, 71 N. W. 296; Bowersock v. Adams, 59 Kans. 779, 54 Pac. 1064; Clow v. Yount, 93 Ill. App. 112.

07 Lefever v. Johnson, 79 Ind. 554; Cincinnati &c. R. Co. v. McDougall, 108 Ind. 179, 182, 8 N. E. 571; Burket v. Pheister, 114 Ind. 503, 16 N. E. 813; Kastl v. Arthur, (Mich.) 97 N. W. 711.

98 Carr v. Dodge, 40 N. H. 403; Dickens v. Winter, 169 Pa. St. 126, 32 Atl. 289; Irwin v. Patchen, 164 Pa. St. 51, 30 Atl. 436; see, Vol. 1, $179, and authorities cited; Vol. 2, § 1285.

"Burket v. Pheister, 114 Ind. 503. 16 N. E. 813; Hadley v. Hadley, 82 Ind. 75.

100 Stanfield v. Stiltz, 93 Ind. 249. 101 Hadley v. Hadley, 82 Ind. 75.

§ 2616. Generally.-Many questions relating to sales have been so fully treated elsewhere that they need not be specifically considered in this chapter. Thus, questions in regard to fraudulent sales and questions in regard to damages are fully treated in other chapters devoted to those subjects. So, questions as to admissions, book entries and parol evidence have been so fully treated that little remains to be said. in this connection. In this chapter we shall consider the nature of sales and evidence to prove them and their essential elements, questions of law and of fact in cases relating to alleged sales, questions as to the burden of proof and presumptions, and as to the evidence on certain issues or matters that are most often involved, especially in actions by the vendor or vendee. The essentials of a sale must be established in actions relying upon the sale of personal property and the evidence must usually show a mutual agreement between competent parties, a price or money consideration and a transfer of the absolute or general property in the article from the seller to the buyer. These are, in general, the requisite elements of a sale, and furnish the ordinary test for distinguishing it from other transactions. But, in some instances, resort must be had to the intention of the parties as shown by the nature of the transaction and its attending facts and circumstances.1

1

1 See, R. M. Benjamin Sales 1; Atkinson Sales, 5; Gardner v. Lane, 12 Allen (Mass.) 39; Schenck v.

Saunders, 13 Gray (Mass.) 37; Barker v. Marine Ins. Co., 2 Mason (U. S.) 369. Yet an unexplained deliv

§ 2617. Evidence of a sale.-Evidence that goods were furnished by one person and received by another, both acting in their line of business, has been said to be prima facie evidence of a sale,' but to make strict proof of a sale more would generally be required. Witnesses may be allowed to testify as to the transaction, who were present at and who know the circumstances of the transaction. The circumstances surrounding the transaction may be taken into consideration in determining if it amounts to a sale, and an instrument although absolute upon its face may be declared a mortgage where the circumstances warrant, as for instance, under certain circumstances between father and son when third parties are affected. Where the defendant in an action for the purchase price denies having bought the goods, the fact that he accepted the goods and used them is prima facie evidence that the sale was made to him." Evidence may be introduced to prove that a defendant purchased certain goods, by showing that he selected the goods, fixed upon the price, had the goods altered to suit himself, and also that he ratified the sale afterwards by saying that he would pay for them. So, where there is a dispute as to whether the transaction was a sale or a mortgage, the plaintiff may show that the defendant also considered it as a sale, by the fact that the defendant has treated the property as his own and has sold all or a part of it. And, generally, all the circumstances surrounding the transaction may be taken into consideration to determine whether it was a sale or a bailment or consignment."

ery of personal property to another at his request has been held to raise a presumption of a sale rather than a gift. Dant v. State, 106 Ind. 79, 5 N. E. 870.

2 Carman v. Scribner, 3 Houst. (Del.) 554.

'Stern v. Filene, 14 Allen (Mass.) 9; Harris Photographic Supply Co. v. Fisher, 81 Mich. 136, 45 N. W. 661; see, Zwisler v. Storts, 30 Mo. App. 163, which held that certain facts are not sufficient to show a sale.

4 Buhl Iron Works v. Teuton, 67 Mich. 623, 35 N. W. 804; Cake v. Shull, 18 Stew. (N. J.) 208, 16 Atl. 434; Keller v. Paine, 107 N.