Rodman v. Thalheimer

• Decision Date: 16 February 1874
• Citation: 75 Pa. 232
• Parties: Rodman <I>et al. versus</I> Thalheimer.
• Court: Pennsylvania Supreme Court

75 Pa. 232

Rodman et al. versus Thalheimer.

Supreme Court of Pennsylvania.

February 5, 1874.

February 16, 1874.

February 5th 1874.

Before AGNEW, C. J., MERCUR and GORDON, JJ. SHARSWOOD, J., at Nisi Prius

Error to the District Court of Philadelphia: No. 370, to January Term 1872.

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S. D. Page and S. S. Hollingsworth, for plaintiffs in error.— False representations by vendee to vendor by which he is induced to sell goods is a fraud, and gives the vendor the right to rescind: Harner v. Fisher, 8 P. F. Smith 453. The evidence here should have gone to the jury: Weeks v. Burton, 7 Vermont 67; Tryon v. Whitemarsh, 1 Metcalf 1; Upton v. Vail, 6 Johns. R. 181; Boyd v. Browne, 6 Barr 310; Bokee v. Walker, 2 Harris 140; Huber v. Wilson, 11 Id. 178; Graham v. Hollinger, 10 Wright 55; Heastings v. McGee, 16 P. F. Smith 386.

W. L. Hirst, for defendant in error.—To rescind the sale there must be artifice, intended and fitted to deceive: Smith v. Murphy, 9 Harris 367; Backenstoss v. Speicher, 7 Casey 324.

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...