#### Louis E. Wolff, Appellant, *v.*Lorenz Zeller, as Assignee, etc., of Joseph Herrmann, Respondent.

(Supreme Court, Appellate Term,

April, 1900.)

Action toy vendor to recover of general assignee of vendee chattels procured toy the latter’s fraud — Rescission — Demand.

Where parties to a sale of chattels, procured toy fraud, rescind before the vendee makes a general assignment, the title reverts to the vendor provided no rights of the creditors of the vendee are concerned, the possession of the vendee is that of the vendor, and the latter may recover the chattels of the general assignee without demand made of him.

Wolff v. Zeller, 27 Mise. Rep. 646, reversed.

Appeal from an order and judgment of the General Term of the City Court" of the city of Hew York, affirming a judgment of a Trial Term, dismissing the complaint.

Emanuel Eschwege, for appellant.

Edward Miehling, for respondent.

O’Gorman, J.

This action was brought to recover possession of certain chattels sold by plaintiff’s assignor to the defendant’s assignor in reliance on the latter’s false representations as to his solvency. At the close of the plaintiff’s case the complaint was dismissed on the ground that no cause of action had been established. In the affirmance in the court below, it was said in support of this disposition of the case that there was neither proof of a valid *256rescission of the sale before the general assignment to the defendant, nor a demand upon the assignee before suit. It appears from the record before us that on January 11, 1898, and immediately prer vious to the sale in question, the defendant’s assignor, Joseph Herrmann, stated to plaintiff’s assignor that he never borrowed money, and was worth $30,000, with $1,000'liabilities; that towards the end of May, in the same year, and after the sale in question defendant’s assignor stated that his previous statements were false, and indicated the details of their falsity. This evidence, uncontradicted, required the submission of the case to the jury. There was sufficient testimony to establish plaintiff’s allegations of fraud. The demand on the defendant was alleged in the second paragraph of the complaint, and admitted by the answer, and, therefore, required no proof. Even without the admission as to the demand on the defendant, a case was made out, in view of the testimony touching a rescission of the sale between the parties previous to the assignment. According to the evidence of plaintiff’s assignor, he charged the defendant’s assignor four days before the general assignment. with the fraud practiced upon him, whereupon defendant’s assignor offered to return the goods, which offer was instantly accepted by the plaintiff. This conduct of the parties constituted a rescission. Persons who are competent to make a contract are competent to waive or abandon it, and where both agree to such waiver and abandonment, whether for fraud or other cause, or. without any cause whatever, their united assent dissolves the contract, and the rights of each under it are ended. Graves v. White, 87 N. Y. 465. The circumstances, as related by the plaintiff, clearly manifested an intention on the part of both parties at this interview that there should be an absolute abandonment and rescission of the contract. The legal situation thus created by the parties was in nowise impaired by the subsequent failure of the defendant’s assignor to keep his promise made with respect to the return cartage of the goods. After an actual rescission, except where the rights of *bona fide*creditors of the vendee are affected, which is not the case before us, - the vendee’s possession of the chattels becomes that of . the vendor. Folsom v. Cornell, 150 Mass. 118; Benj. Sales (7th ed.), 731, and cases cited. If a rescission occurred before the general assignment, as testified to by plaintiff, a subsequent demand on the defendant was unnecessary, 'because the defendant, as assignee, became entitled to the possession of such property only as *257the assignor had title to at the time of the assignment. Nat. Bank v. Hubbell, 117 N. Y. 398. There having been a previous rescission, defendant’s assignor had absolutely no title at the time of the assignment, and it is clear that the assignee could not acquire rights not possessed by his assignor. Goodwin v. Wertheimer, 99 N. Y. 149; Nat. Bank v. Hubbell, *supra.*As we have seen, however, a demand was, nevertheless, made upon the defendant, and in any aspect of the case it was error to take the case from the jury.

Judgment reversed and new trial ordered, with costs to the appellant to abide the event.

Seek man, P. J., and Gieoerich, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.