
    Solomon M. Grouse, Resp’t, v. Elias Wolf, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed August 9, 1893.)
    
    Sale—Rescission.
    Plaintiff sold a truck to defendant, for which the latter agreed to pay a certain sum, but thereafter offered to and did return the truck, and plaintiff took possession thereof and sold it for a smaller sum. Held, that this constituted a rescission of the sale to defendant, and that plaintiff was not entitled to the purchase money.
    Appeal from a judgment for plaintiff rendered by the district court in the city of New York for the ninth judicial district.
    Action to recover the purchase money agreed to be paid upon the alleged sale and delivery of a truck by plaintiff to defendant.
    
      Goldsmith & Doherty, for resp’t; Maurice B. Blumenthal, for app’lt.
   Bischoff, J.

As we understand plaintiff’s testimony, it was to the effect that he sold and delivered a truck to defendant, which the latter accepted, and for which he agreed to pay the sum of $150; that some time after the delivery and acceptance of the truck defendant offered to return it, and did in fact take it to the premises of L. Ullman & Co., where plaintiff assumed possession, and subsequently again sold the truck to Cowperthwait & Co. for sixty dollars. This was all the evidence which was adduced on. the trial, and a judgment for plaintiff thereon is clearly erroneous..

It was competent for the parties to rescind the sale of the truck by mutual agreement to that effect, and that they did so is indisputable from plaintiff’s admission that the truck was returned to-him, and that he thereupon sold it to others. After such rescission, plaintiff was not entitled to the purchase money which defendant, had agreed to pay, and if the latter had paid any sum on account he was entitled to return thereof. Fulton v. The Met. Life Ins. Co., 53 St. Rep., 172.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event

Gtegerich, J., concurs.  