Cincinnati Cooperage Co. v. Gaul
32 A. 1093
Pa.
1895
Check Treatment

Opinion by

Mr. Justice McCollum,

This is a very close case, and the important question in it is whether the evidence was sufficient to authorize the verdict on which the judgment appealed from was entered. It is an action of replevin for a lot of beer kegs, and is in rescission of the contract under which the kegs were sold and delivered by the plaintiff to the defendant’s assignor. It was brought on the theory that the sale was effected through the fraud of the purchaser. The elements of the alleged fraud are the insolvency of the purchaser, and his knowledge and concealment of it at the time of the sale, together with his misrepresentation respecting his financial standing at that time.

It is well settled in Pennsylvania that the insolvency of the purchaser and his knowledge of it when he made the purchase are not alone sufficient to invalidate the sale or to support an action by the seller in rescission of it. But they “ are evidence to go to the jury with other facts to show the intended fraud: ” Rodman v. Thalheimer, 75 Pa. 232. It is essential to the impeachment of the sale as fraudulent that there should be artifice, trick or false pretense intended and fitted to deceive the vendor and operative in obtaining from him possession of his property: Smith v. Smith, Murphy & Co., 21 Pa. 367; Backentoss v. Speieher et us., 31 Pa. 324, and Wessels v. Weiss Bros., 156 Pa. 591. But the insolvency of the purchaser and his knowledge of it, coupled with a representation of solvency which induced the seller to part with the possession of his prop*548erty, will have that effect and enable the latter to recover possession of it by a suit in rescission of the sale. The verdict in this case embraces a finding of the elements we have mentioned as sufficient, taken together, to furnish ground for rescission. It is a finding made under instructions in relation to the law of the case and to the evidence in it, of which the appellant has no cause to complain, if the evidence was sufficient to authorize it. The law was correctly stated for the guidance of the jury in their deliberations, and the evidence was fairly presented for their consideration in the charge. Was the evidence sufficient to authorize the verdict? We think it was. It fairly admitted of an interpretation in accord with the plaintiff’s contention, and justified the conclusion that the transaction relied on by the defendant as having invested his assignor with title to the property was vitiated by the fraud of the latter. The purchaser’s assignment for the benefit of his creditors, the inventory of his assets and the disparity between them and his liabilities, the absence of any claim of losses or change in financial condition between the sale and the assignment, were matters from which the jury might reasonably infer that he was insolvent, and knew or ought to have known that he was so when he made the purchase. His representation respecting his financial standing when questioned by the plaintiff’s agent in regard to it might well be considered as an assurance of his solvency and influential in effecting the sale. He did not deny that he made the representation as testified to by the agent or explain or qualify it. It was not a satisfactory answer to the evidence referred to for the purchaser to say that when he bought the kegs he did not know what the amount of his indebtedness was. His credibility in connection with the undisputed testimony was for the jury, and upon them devolved the duty of determining whether the sale was accomplished by his fraud. We are therefore constrained to overrule the specifications of error.

Judgment affirmed.