
    Elias Bach et al., Pl’ffs, v. Simon Tuch, Assignee, Def’t.
    
      (Supreme Court, General Term, First Department
    
    
      Filed June 26, 1890.)
    
    1. Sale — Rescission on ground of fraud.
    In order to avoid a sale on the ground of fraud it is not sufficient that the vendee know that he is insolvent, but such insolvency must be of such extrinsic character that he must have known that he must fail before the time for payment for the goods arrived.
    3. Same — Fraudulent representations.
    Fraudulent intention cannot be established by proof of representations to other parties as to the vendee’s financial condition, where it does not appear that he defrauded such other parties.
    Motion by plaintiffs for new trial upon exceptions ordered to be heard in the first instance at general term.
    
      B. F. Einstein, for motion; E. D. Wise, opposed.
   Van Brunt, P. J.

This action was in replevin, brought to necover the possession of certain personal property. The goods were taken from the sheriff and delivered to the plaintiffs, who still holds them.

It appeared upon the trial that on the 27th of October, 1885, the plaintiffs sold and delivered to one Moeller the merchandise in in question, for which Moeller gave his promissory note, which was tendered to the defendant at the trial and refused. Two months after the sale Moeller made an assignment to the defendant Tuch for the benefit of creditors, in which he gave various preferences. The plaintiffs commenced an action in the city court •of Hew York for the purchase price of said goods, and obtained and issued an attachment therein against Moeller, on the ground of fraudulent statements made by Moeller at the time of and for the purpose of inducing the sale and the fraudulent removal of his property.

In the affidavit upon which the attachment was granted, Bach, ■one of the plaintiffs, set forth various representations made by Moeller, and then alleges that said representations so made were false and untrue in every particular, and the defendant must have known the same were untrue when he made the same. The attachment was vacated by the general term of the city court, and the suit discontinued.

The plaintiffs then began this suit in replevin, after making demand for their goods upon the sheriff, on the ground that they now desired to rescind the sale, for the price of the goods sold whereon they had begun the attachment suit.

Upon this state of facts the jury were directed to render a verdict for the defendants for the return of the goods and for damages for their retention.

To this direction exception was taken, which exception was ordered to be heard in the first instance at the general term.

We see no error in the disposition of the case by the circuit, court. The only evidence tending to show fraud, offered upon the part of the plaintiffs, was that of an expert accountant tending-to prove what the books of Moeller showed as to his financial condition at or about the time of the sale. This evidence showed that he was probably at that time insolvent. But this insolvency was not of such an utter and hopeless character as would justify any finding by a jury that any purchases of goods made by him were fraudulent, and with intent not to pay for the same. There was nothing shown in his condition which could possibly justify a finding that Moeller knew that he could not pay for the goods at the time the credit expired. It is not sufficient that a debtor should know that he was insolvent; but that the insolvency must be of that extreme character, in order to avoid a sale, that the debtor must have known that he must fail before the time for the payment of the goods arrived.

The evidence in this case shows no_ such condition; and there-was nothing which would justify a jury in coming to any such conclusion.

It was claimed by the expert that stale claims aggregating a large amount appear upon these books which made the defendant, Moeller, hopelessly insolvent. But there is no proof whatever in this case going to show that at the time these goods were bought the financial condition of these debtors of the defendant was of such a character as that he had no reasonable ground to suppose that he might make collections.

There is no evidence whatever of any representation in respect to the defendant’s condition at the time of this purchase. It is true that the plaintiffs sought by proof of representations to other-parties of Moeller’s financial condition to show that he had a frauddulent intention. But there is no evidence whatever that he defrauded any of the persons to whom such representations were made ; and if he did not, then it is clear that these representations could not be considered as made with a fraudulent intent.

■ We see no reason to interfere with the rulings of the court below, and the exceptions should be overruled and judgment entered upon the verdict for the defendant, with costs.

Brady and Daniels, JJ., concur.  