Coursey v. Coe ( 1897 )

Hardin, P. J.:

Plaintiff, in September, 1896, sold to the defendant Dieteman about 2,000 pounds of flour and sacks containing the flour, and about thirty days thereafter Dieteman made' a general assignment for the benefit of his creditors to the defendant Coe. Prior to the assignment Dieteman had used in his bakery about 500 pounds of the flour. Plaintiff caused a demand to be made for the remaining flour of the defendant Coe, who declined to surrender the same. .Thereupon the plaintiff instituted this suit with replevin proceedings to recover the possession of the portion of the flour which had reached the hands of Coe, and, by virtue of the replevin proceedings, took possession of the same. Plaintiff alleged in his complaint that he was the owner of the flour and that the defendant Dieteman purchased the same of him with the preconceived design not to pay for the same, and that the purchase was fraudulent. The defendants answered in the Justice’s Court and a large volume of evidence was taken in the Justice’s Court and the justice rendered a judgment in favor of the plaintiff. The defendant Coe appealed to the County Court where the judgment of the Justice’s Court was reversed. Thereupon the plaintiff appealed to this court.

The evidence in the Justice’s Court was sufficient to warrant the judgment rendered by the justice that the flour was purchased by Dieteman with the preconceived design not to pay for the same, and, therefore, the County Court ought not to have reversed the judgment of the Justice’s Court. (Morris v. Talcott, 96 N. Y. 100.)

While the evidence was slight that a demand was made of the defendant Coe, before the action was instituted in the Justice’s Court, we think that it was sufficient to warrant the justice in finding that as soon as the plaintiff learned of the fraud he rescinded the contract of sale and acquainted Coe thereof, who refused to surrender the property to the plaintiff.

We think the judgment of the County Court reversing the justice’s judgment should be reversed.

All concurred.

Judgment of the County Court reversing the judgment of the Justice’s Court reversed and the judgment of the Justice’s Court affirmed, with costs.