Faulder v. Emanuel

Opinion by

W. D. Porter, J.,

The only specification of error in this appeal relies upon the refusal of the court below to give binding instructions in favor of the defendairt. Was there sufficient evidence to warrant the submission to the jury of the facts upon which plaintiff’s right to recover depended ? The plaintiff testifed that John Emanuel, the husband of defendant, came to his, plaintiff’s place of business and represented that he was Mr. Emanuel, of the firm of Schulze & Emanuel, which was at that time a reliable business firm of the city of Allegheny, and that he, Emanuel, owned property in Bellevue, “ one of the finest properties in Bellevue, and every cent paid for.” Upon the faith of these representations the plaintiff sold to Emanuel several pieces of fine furniture and accepted his note at thirty days for the amount thereof. This note was not paid at maturity, and when plaintiff asked Emanuel with regard to it, the latter explained that he had forgotten it, but that he would give another note which would be attended to. A new note was given and when the plaintiff took this note to the bank he first discovered that Emanuel was not the Mr. Emanuel of the firm of Schulze & Emanuel. He then went to the courthouse and discovered that the title to the property in Bellevue was not in Emanuel, but was owned by his wife. Plaintiff explicitly testified that he believed 'the representations of Emanuel at the time the sale was made, and made the sale upon the faith of them, and that he did not discover the fraud until he took the note to the bank. Plaintiff further testified that, upon discovery of the fraud, he took his furniture wagon and went to the house of Emanuel, in Bellevue, to get the goods. He there found John Emanuel and Mary Emanuel, his wife, when the following occurred : “ Q. Just tell the court and jury what demand you made upon him? A. I told him, ‘You got that furniture by fraud, and that I was going to take the goods as you are not willing to pay for it.’ And he got very angry and got very snappy and wanted to fight, and Mrs. Emanuel stood by him and says, ‘ That furniture can’t go out of this house; it is in this house and I will take it and I will pay for it.’ I says, ‘ If you take that furniture I will rescind the sale to him and you pay for it, it is all right, I will leave it,’ and I left it with that understanding. Q. You say that you told her you rescinded the sale? A. Yes, sir. Q. Had you told that to Mr. Emanuel? A. He was present at the time. Q. And she agreed she would take the furniture herself? A. And pay for it. Q. Well, did you leave the furniture with her ? A. I did.”

Here was positive testimony that John Emanuel had fraudulently obtained these goods, through false representations, fitted and intended to deceive, and that the plaintiff had been deceived thereby and so induced to part with the possession of his goods. If the jury believed this testimony, the plaintiff had a right to rescind the sale and reclaim his goods. The jury would have been justified in finding, under the testimony, that plaintiff acted with promptness and declared a rescission of the contract and announced his intention of removing the goods; and that, thereupon, the defendant recognized the rescission and then and there agreed to purchase the goods herself, and that the plaintiff sold them to her directly; and, finally, that John Emanuel, who was then present, acquiesced in the rescission of the sale originally made to him. There is no merit in the contention of the defendant that she cannot be called upon to pay because the worthless note of John Emanuel had not been returned to him; she had no right to demand the return of that note. John Emanuel, having been present at the resale of the goods to his wife, and having acquiesced therein, might very properly have been found by the jury to have waived his right to a return of the note prior to -the rescission of the contract. The case was for the jury and was submitted by the learned court below with instructions which were correct and adequate.

Judgment affirmed.