
    George Wolf, Appellant, v. Ette Michael et al., Respondents.
    (Supreme Court, Appellate Term,
    July, 1897.)
    1. Sales — Rescission — Failure of title of vendor.
    Where the title-of the vendor of personal property fails, the vendee may rescind and recover his advances, or he may abandon the property". . to the true owner, taking upon himself the onus of proving title in such owner. .
    ■ ¡2. Same — False representations.
    Where the vendor of personal property has been guilty .of fraudulent representations, the doctrine of caveat emptor does not apply.
    3. Bills and notes—Recoupment by maker available to indorsers jointly sued.
    Where an action is brought upon a promissory note against both its maker and its indorsers, a successful recoupment by the maker enures to the benefit of the indorsers. . '
    Appeal."by plaintiff from judgment of the Seventh' District Court.
    
      Nathan Mayer (Saul Bernstein, of counsel), for appellant.
    Grossman & Vorhaus, for respondents.
   McAdam, J.

The action is upon a promissory note for $150, made by the defendant Pauline Abeles, and indorsed by the other defendants, as part of the purchase price of business at Altoona, Pennsylvania, purchased by Abeles of the plaintiff. The questions arise upon three counterclaims pleaded by Abeles, as follows: •

1. Part of the property belonging to the business sold consisted of certain fixtures, and the price put upon them at the sale was $100. The bill of sale contained the usual warranty of title. The vendee claimed that these fixtures belonged to the landlord of the store at Altoona, and not to Wolf, the vendor, and the jury so found, and on that account deducted $100 from the plaintiff’s demand.

The deduction was warranted by the finding of the jury;, for the rule is that where there is a total failure of title on the part of the vendor the vendee may rescind and recover back his advances (Story on Sales, § 203), or he may abandon the property to the true owner, taking upon himself the onus of proving title in such owner. Sweetman v. Prince, 26 N. Y. 224.

The fixtures are still in the store, which is occupied by Abeles, and she has acknowledged the right of the landlord to them, and as far as surrender thereof is possible has given them to him. She cannot take them out and deliver them to him physically, because he wants them where they are as an incident to his ownership of the realty.

2. The plaintiff sold certain other personal property to the defendant Abeles, including what are called branded goods, which were represented to be “ O. K.,” in good order and salable. They were proven to be unsalable, not in good order, and almost valueless. The doctrine of caveat emptor invoked by the plaintiff does not apply where the vendor has been guilty of fraudulent representations. Story on Sales, § 378.

The jury allowed the vendee as damages for such fraud and breach the sum of about $30, which, with the $100, before referred to, made $130, and gave the plaintiff a verdict for the balance of his claim, amounting to $20; and it is from the judgment entered on this verdict that the plaintiff appeals.

3. The third counterclaim for damages on the sale of the accounts was disallowed, and may be considered out of the case. The maker and indorsers of' the note' having been sued together, a successful recoupment by the former inures to the benefit of the latter. Springer v. Dwyer, 50 N. Y. 19.

The case appears to have been fairly tried. It was submitted to the jury on conflicting evidence by an impartial charge, and then-finding is unwarranted by the evidence.

There is no merit in the' exceptions, and the judgment must be affirmed, with costs.

Bischoff, J., concurs.

Judgment affirmed, with costs.  