Rodman v. Thalheimer

Judgment was entered in the Supreme Court, February 16th 1874. Per Curiam. This was a sale by a “ drummer ” for a New York house. His whole testimony, including his letter to his employers of the 19th of February 1870, in which he expresses his felicity,” as well as his note of the sale to the defendant, shows that he, as the agent of the plaintiffs, made the sale of the cedar at Philadelphia, and that the defendant was induced to buy at his urgent request. It is true, he asked the defendant about trade, and the latter said it was good ; and asked him/about his business, and the latter said it was good; he was making money — making cigar-boxes and chests. But this was not said as an inducement to obtain credit, nor is there the slightest evidence of artifice or trick on part of the defendant to obtain the cedar. If the plaintiffs have suffered a loss from the credit given and the insolvency of the defendant, it can mainly be attributed to their mode of business in sending out an anxious agent to “ drum up” customers in the expressive terms of trade. It is very evident Daly, the “ drummer,” followed up his vocation with assiduity, and without very great concern for the ability of his customer. In his own language the defendant did not buy the first time he saw him; was invited to the Girard Hotel to see the samples, and he “pressed the defendant to buy,” as (he said) “ I usually do,” and told him if he was unable to pay on time his notes falling due we might accommodate him then. We see in all these circumstances not the slightest intent on part of the defendant to obtain the goods by a fraudulent concealment of his insolvency. The law in this state is not that insolvency and the mere knowledge of it are such a fraud as to set aside the sale and enable the seller to rescind, and to replevy the goods after they have come fully and fairly into the possession of the purchaser. It requires artifice, trick or false pretence, as a means of obtaining possession, to avoid the purchase. There must be bad faith, — an intent at [238] the time to defraud the seller. Insolvency and a knowledge of it at the time of the sale are evidence to go to the jury with other facts to show the intended fraud, but standing alone will not operate to rescind after a possession fully and fairly acquired. The New York doctrine does not hold in this state. See Smith v. Smith, Murphy & Co., 9 Harris 367; Bunn, Raiguel & Co. v. Ahl, 5 Casey 387; Backenstoss v. Speicher, 7 Casey 325 ; Harner v. Fisher, 8 P. F. Smith 453; Williams v. Davis, 19 Id. 21. These considerations dispose of the exceptions to the evidence. The place of the contract was Philadelphia, as we have already stated. Daly says he accepted defendant’s offer— he made the sale — he reported it and congratulated the plaintiffs upon it. The contract was not to be executed in New York. Of course the cedar came from New York by the designated route, but the delivery was not there by contract. Judgment affirmed.