48 Md. 506 | Md. | 1878
delivered the opinion of the Court.
Under a contract of purchase, Henry C. Ullrich received from the appellees a quantity of coal. The appellees treating the purchase as fraudulent and void, and that no title to the coal had passed from them, (Powell, et al. vs. Bradlee & Co., 9 G. & J., 278,) brought this action of replevin for the remainder of the coal, unsold by Ullrich, against the appellant, to whom Ullrich had assigned all his property for the benefit of his creditors.
Exceptions were taken to the granting of the plaintiffs’, and the refusal of the defendant’s prayers.
The exception to the plaintiffs’ first prayer was abandoned, and the defendant’s first prayer was withdrawn.
The second prayer of the plaintiffs, and the third, fourth, fifth and seventh prayers of the defendant, substantially involve tbe question, whether the plaintiffs, upon the rescinding of the contract for the sale of the coal, under the circumstances disclosed, were obliged not only to return the notes that had been given for the same, but the money advanced by Ullrich in part payment for the coal contracted to be sold to him, if he had received on the sales of the coal made by him, an equivalent amount of money.
If no title to the coal had passed to Ullrich, any of the same in his possession, and any money received by him on sales of the coal belonged to the plaintiffs. Thus having the plaintiffs’ funds in his hands, from the sales of the coal, equal to what the plaintiffs had received from him, that constituted a sufficient re-imbursement for the money advanced.
Holding such funds of the plaintiffs in his hands, he is estopped from claiming the return of the money, paid by him, upon the cancellation of the contract.
There was no error in the Superior Court, granting the appellees’ second prayer, and refusing the aforesaid prayers of the appellant.
The modification by the Court of the defendant’s second prayer, was unobjectionable.
The whole question of Ullrich’s reasonable expectation of being able to comply with the terms of his purchase, at the time of the contract, was left to the determination of the jury; and his general indebtedness was a matter that might very properly be considered by them in the solution of the inquiry.
Judgment affirmed.
