McElwain, Hutchinson & Winch v. Barack

Beach, J.

No attempt is made to correct the finding. The reasons of appeal discussed in argument are whether, on the facts found, the court erred in ruling that the plaintiffs were not entitled to rescind and replevy; and whether, on the facts found, the court erred in holding that the plaintiffs, if entitled to rescind, were bound to replevy all goods sold by them and found in the defendant Barack’s possession, whether paid for or not.

Taking, first, the ruling on the right to rescind. The facts found show that on January 10th, 1924, the defendant Barack placed an order with plaintiffs’ local representative in New Haven for about $2,000 worth of shoes, on which he desired credit to the extent of about $1,100, and for the purpose of obtaining that credit represented in writing, by Exhibit A, that he had $2,100 in bank and no liabilities. On the faith of this representation plaintiffs shipped goods to the amount of $1,958.14. Barack paid $900 down and $300 more in several instalments on account, and was allowed some credits, leaving a balance of $890.76 remaining unpaid.

On or about April 1st (probably after the last order, dated April 7th) Barack committed an act of bankruptcy, by making an assignment for the benefit of creditors to one Mellion, and plaintiffs, on learning of this, refused to assent to it, and on April 10th caused this replevin suit to be instituted, claiming that Barack’s representation that he had no liabilities on January 10th was false. On April 25th, Barack filed a .voluntary petition in bankruptcy, accompanied, as required by the Bankruptcy Act, by a sworn statement of liabilities, in which Mellion- was listed as a creditor for $3,375. This was before the return day of the writ. When this suit was brought Mellion was in possession of the goods as assignee, and was made a codefendant. Before any answer was filed, Mellion filed an itemized claim in the bankruptcy proceedings for moneys loaned to Barack, aggregating $3,375, which specifically included the $2,100 in bank.

Thus both of the original defendants in this action had already sworn in the bankruptcy court, before any answer was filed in this action, that the $2,100 in question was a loan, and that Barack’s original representation was false. It then seemed that all parties to the transaction were agreed that the plaintiffs had been induced to extend credit upon the false representation that Barack had no liabilities to offset his “$2,100 cash in bank” on January 10th. But Barack’s trustee in bankruptcy evidently had other views, and by answer and counterclaim claimed possession of the goods replevied.

Under pressure of examination in open court, Barack recanted; testified that the moneys in question were not loans, but unconditional gifts, and the trial court has so found. This finding convicts Barack and Mellion of an attempt to defraud the plaintiffs and other creditors, by swearing that Mellion was a creditor in bankruptcy when he was not such; and for all that appears on this record they may still be attempting to consummate that fraud. But however that may be, the finding compels the conclusion that the property in the shoes in question passed to the buyer by the original sale and delivery, and that the plaintiffs have no right to rescind that transaction because of a subsequent attempted fraud.

This disposes of the cause, and we express no opinion upon the question whether, in the case of a severable contract of sale mutually performed in a severable part, a defrauded vendor is bound to rescind and replevy as to all goods sold and found in the buyer’s possession whether paid for or not.

There is no' error.

In this opinion the other judges concurred.