Lincoln v. Claflin
ERROR to the Circuit Court of the Northern District of Illinois.
Claflin and others brought an action on the case against two defendants, Lincoln and Mileham, for fraudulently obtaining the property of the plaintiffs, alleging a combination and prearrangement between them, by which Mileham purchased goods to a large amount of different parties in New York, and among others of the plaintiffs, upon false and fraudulent representations of his means and business, and Lincoln sold them at St. Louis, within a few days afterwards, at auction, for less than their cost price, and appropriated the proceeds to his own use; the whole thing being alleged to have been done with intent to defraud the vendors of their property.
That Mileham was guilty of the fraud was not seriously controverted in the court below.
The principal defence turned upon the connection of the defendant Lincoln with the fraudulent acts of Mileham. Lincoln had been, it was alleged, a large creditor of Mileham, and, as he and Mileham asserted, had obtained the goods from Mileham only by his own superior vigilance, and to pay his own just debt. On the subject of the fraudulent connection of the parties, the court charged that the jury must be satisfied either that Lincoln was a party to the original fraud, or that he became a party to it by his own conduct and acts subsequently, with knowledge of the fraud; and that this last, if true, 'would be the same as though he had been a party to it originally.' The court also admitted evidence of other similar fraudulent transactions of the same parties, with others, made about the same time. The court also allowed declarations of each party, made in the absence of the other, relating to the transaction in question, to go to the jury; but it charged that whether these declarations would be evidence as against both, would depend on the view the jury should take in relation to the completion and consummation of the fraudulent enterprise; that is to say, if they believed there was a fraudulent concert between the two defendants, and that these declarations were made during the progress and continuation of the enterprise, what each said would be evidence against the other; but that if the enterprise was ended and completed before the declarations were made, then that what one said would not be evidence against the other. As to damages, it charged that if the jury should find for the plaintiffs, that the amount should be 'the value of the goods at the time they were purchased, with interest from that time.'
The plaintiff excepted to the admission of the evidence above mentioned, and to the charge of the court generally, but did not except to it on the ground of a wrong instruction as to interest. The bill of exceptions set out the whole evidence given on the trial, with a long charge in extenso, and occupied ninety-six pages out of a hundred and twenty-six which composed the record.
The plaintiff recovered judgment, and the defendant, Lincoln, brought the case by a writ of error to this court.
Mr. Goudy, for the plaintiff in error:
1. The allegata and probata do not agree. The gist of the declaration was the purchase of the plaintiff's goods in pursuance of a fraudulent prearrangement between Mileham and Lincoln. Under the allegations the purchase was made as much by Lincoln as Mileham; and Lincoln was an original party to the fraud; not an accessory after the fact, but a principal. Of these allegations there was no proof. There was, therefore, a variance.
The court might have properly charged that the acts of Lincoln subsequent to the purchase were sufficient evidence that he was an original conspirator. But it charged instead that it was unimportant whether he entered into a conspiracy and was a party by preconcert or not; that it was sufficient to convict him, if, knowing of the fraud by Mileham, he became a party to it subsequently. There was no such cause of action set forth, and no such issue.
if such cause of action had been set forth it would not have been a good one. A conspiracy subsequently to the purchase of goods, although fraudulent and injurious, is no cause of action. Adler v. Fenton  decides this. Indeed, in that case, there was a conspiracy and fraud for the express purpose of defeating the creditor. Here there was a mere effort of one creditor to gain priority over another; an act which the law commends; for it helps the vigilant, not the sleeping.
2. The admissions were wrongly received. It is true that the court below charged that they would not be evidence as against both of the defendants unless the conspiracy was proved and the common purpose had not been accomplished and completed. But this did not cure the error. There was no evidence of conspiracy, and the reception of the evidence caused a prejudice in the jury against the defendant.
3. That interest is not allowed eo nomine in an action to recover damages for the wrongful conversion or tortious taking of property, but is a matter of discretion with the jury, is settled. 
Mr. Farnsworth, contra:
1. Opposing counsel argue the case as if it were in the court below. They contend that Lincoln was a creditor of Mileham, but that question was passed on by the jury, who have obviously found in the negative.
The charge as to Lincoln's connection with the fraud was right. The doctrine laid down in it is held even in criminal cases. Thus, in The People v. Mather,  the court say:
'Whenever a new party concurs in the plans originally formed, and comes in to aid in the execution of them, he is from that moment a fellow-conspirator. He commits the offence whenever he agrees to become a party to the transaction, or does any act in furtherance of the original design.'
Adler v. Fenton, relied on to show no cause of action, was an action brought by creditors of Adler & Schiff, upon the complaint that they had fraudulently conspired with their co-defendants to dispose of their property, so as to defeat creditors: the decision was based on the ground that courts would not prevent an insolvent debtor from alienating his property, and that as Adler & Schiff were the legal owners of the property at the time the suit was commenced, no one had any right to interfere with their use. Our case is different. We do not allege that we have suffered damage, by reason of a conspiracy between Lincoln and Mileham, fraudulently to dispose of the property of the latter, but seek to recover damages against them for obtaining, by a fraudulent conspiracy, the possession of our property. The theory of our case is, that no title for the goods he got from us ever passed to Mileham; but that through a prearrangement and conspiracy with Lincoln, they two fraudulently obtained possession of our property, which resulted in damage to us to its value.
Mr. Justice FIELD delivered the opinion of the court.
^1 24 Howard, 408.
^2 Gilpins v. Consequa, Peters's Circuit Court, 95; Willings v. Same, Ib. 174; Beals v. Guernsey, 8 Johnson, 453.
^3 4 Wendell, 261.
^4 Whittier v. Varney, 10 New Hampshire, 294; Bridge v. Eggleston, 14 Massachusetts, 250; Foster v. Hall, 12 Pickering, 89; Howe v. Reed, 3 Fairfield, 515; Blake v. Howard, 2 Id. 202; Lovell v. Briggs, 2 New Hampshire, 223; Wiggin v. Day, 9 Gray, 97; Scott v. Williams, 14 Abbot's Practice Reports, 70; Cary v. Hotailing, 1 Hill, 316.
^5 Jones v. Baker, 7 Cowen, 447.