Opinion by
Orlady, J.,In June, 1895 the plaintiff, a New York manufacturer, received from the defendant, a clothing merchant, an order for “ seventy two pairs of men pants ” of the value of one hundred and fifty-six dollars to be delivered at Tyrone, Penn’a. in September following.
The goods were shipped from New York October 16, and received by the defendant at Tyrone three days later. •
After a request by the defendant for further time in which to make payment, the plaintiff went to Tyrone, and under the *522undisputed testimony, on October 28 tbe contract was rescinded, tbe goods were boxed up, and the business address of the plaintiff placed thereon by the defendant, who informed him that he would have them delivered at the freight station of the railroad company.
Subsequent to this, the defendant claimed that a new contract was made, by which he was to retain the goods and pay for them. The plaintiff denied positively that any such contract was made or talked about, but testified that when he returned to the, store with a drayman for the goods, the defendant refused to deliver them; threatened him with physical violence, and placed the clothing again on the shelves.
The plaintiff caused a writ of replevin to be issued, and when served, the defendant gave bond and retained the property.
A verdict for $214.21 was rendered in plaintiff’s favor.
While the original contract was executed in the state of New York, the rescission of it in Pennsylvania left the parties free to contract here, and the whole question in this case was one of fact, viz: Was a new contract made at Tyrone on October 28, by which the same goods were again sold to the defendant by the plaintiff ?
As it was stated by the learned trial judge to the jury, “ Here is a square, plain and simple issue of fact for you to determine. Hid the plaintiff consent that the defendant should retain the goods on the terms testified to by the defendant ? ”
The contention of plaintiff was, that the proceeding of the defendant was a scheme and trick to get possession of the goods; that he was practically insolvent at the time, and while the means employed were circuitous and novel the object of the original order was to get the goods in his store, and eventually secure them through the means practiced. Tbe defendant urged that the purchase by him October 28, was in good faith, and describes the transaction — after the original contract had been rescinded, the goods boxed up and marked with the owner’s name, and ready for delivery to the railroad for reshipment to New York, as follows; “When I came in the store I seen Davis and his drayman he had called, and as I came in his drayman left the store; I says, ‘ What’s this ? ’ He says ‘ I want to save you the money to have the goods hauled over; ’ then I says, ‘Davis, what do you take me for?’ I says, ‘You are doing *523a very wrong thing to me; I have treated you like a gentleman; why didn’t you leave your goods alone ? I went out on purpose to get a drayman; if I didn’t want to give you these goods back I could keep them;” and after further conversation on the propriety of plaintiff’s conduct, the defendant continued; “he talked to me and apologized over and over; I says, ‘That’s all right, but you can’t wipe out what you have done; ’ I says, T offered you to take the goods back; ’ he says, ‘ Keep the goods,’ he says, ‘Will you give me a note?’ I says, ‘You can take your goods; ’ then he got to talking around; he says, ‘ Who will you get to indorse the note?’ I says, ‘I won’t get anybody; if you wish to take my note, you can do so or take the goods; ’ he says, ‘ No, I don’t want the goods; when will you pay me ? ’ I says, ‘ I will pay you this bill for the amount of the goods maybe today and maybe tomorrow, anyhow not later than the 14th of November.’ Then he again took my hand and shook it and says, ‘Well, Cosel, good bye;’ he says, ‘When will I get that check? ’ I says, ‘ Perhaps I will send you that check in a day or two; ’ my actual intention was to send that check, as I pay all my bills.”
On the evening of that day the writ of replevin was served.
The learned trial judge refused a new trial; saying in the opinion filed: “ The case was carefully tried, the usual amount of spirit and energy was displayed between the counsel, as well as the parties. The jury saw the parties, heard their testimony, and in a case where our views are as fully in accord with theirs, as expressed in their verdict, we could not conscientiously impose upon the parties the burden of another trial.”
A careful review of the testimony fully warranted the verdict returned by the jury, and the court below submitted the whole question to them in a charge which correctly disposed of the legal questions raised by the points.
The assignments of error are overruled and the judgment is affirmed.