(concurring).
I agree that an adverse controversy beyond the summary jurisdiction of the court was presented unless the tender made to the trustee (for present purposes to be treated as adequate to support a rescission, if kept good) came too late. The intervention of bankruptcy proceedings would not have foreclosed the right of appellant to rescind promptly upon gaining knowledge that the bankrupt had fraudulently made the purchase. In re Weissman, 19 F.2d 769, 53 A.L.R. 644. Compare, Oppenheimer v. Harriman Nat. Bank & Trust Co., 301 U.S. 206, 214, 57 S.Ct. 719, 81 L.Ed. 1042. Had he made no prior inadequate tender, it would seem that his tender to the trustee would have been prima facie sufficient to make, in connection with his evidence of fraud, his claim of right to retain the skins substantial and adverse. It was, indeed, not made adequate until some four months after the appellant knew the facts upon which he based his claim of fraud but there seems to have been no change during that time whereby third patties acquired any rights which could be adversely affected by such delay as took place.
Decision as to summary jurisdiction must turn, I think, upon whether or not under the circumstances stated by Judge CLARK the position at first taken by the appellant that the $2,000 was not part of the purchase price of the skins estopped him from later conceding that it was and thereby mending his hold, so to speak, only when the weakness of his evidence as to the terms of payment of the purchase price apparently made him think that advisable.
Because this record does not show that appellant was not entitled to increase the amount of his tenderwhen and as he did to like effect as though he had at first included the $2,000, we cannot say that his claim is merely colorable and he is, therefore, entitled to have his rights determined in a plenary suit.