18 Pa. Super. 22 | Pa. Super. Ct. | 1901
Opinion by
Plaintiff claimed to rescind a sale of personal property made to one of the defendants and his partner, upon the ground of fraudulent representations, and issued his replevin to take so much of the property as remained unsold out of the hands of the other defendant, who claimed to be an innocent purchaser for value. The bill of goods purchased amounted to §1,078.63. Upon this there were credits of cash §800, merchandise returned and discount §81.40, leaving a balance due the plaintiff of §197.23. The plaintiffs, in issuing their replevin, gave bond in the sum of §2,200. They had not returned, nor had they offered to return, the money paid. Part of the goods had been sold. One of the defendants, the purchaser of the goods from the original vendees, wishing to retain them and give a claim property bond, was unable to secure sureties upon a bond of §2,200 and, in order to avoid the necessity therefor, as stated by the representative of the plaintiffs, “We met at nine o’clock the next morning and Mr. Wallace (the attorney for the defendants) stated that they were unable to furnish a bond for §2,200 and that, as the unpaid balance upon the bill was only about §200, that he would waive the right of the return of the money and let the issue stand upon the unpaid balance; that that would be §300 in cash and Mr. John M. Smith’s personal bond for §500, in the hands of the sheriff, until the issue would be settled by the court. That, after giving the matter due consideration, we concluded was only fair and just, as we only wanted what was just and fair; that it was for the unpaid balance and costs; that we only wanted what was our own and we conceded to that, the cash and Mr. Smith’s personal bond, and they were placed in the hands of the sheriff and they retained the goods and I went home.”
As to the general rulé in such cases there is no dispute. “ In order that a vendor may rescind a contract of sale of chattels