delivered the opinion of the Court:
Prior to the 9th of October, 1871, appellant had been supplied by appellees with printer’s ink, for sale and for his own use. The arrangement was, that appellees should furnish the ink at an agreed price, and all that appellant sold or used, he was to pay for, with a deduction of ten per cent from the invoice price, with the privilege of returning the balance. Settlements were made quarterly, when the amount used or sold was ascertained and payments made. This had been the course of business for some time previous to the fire of October 9th, 1871, and the same arrangement was made and continued after the fire until these suits were brought.
After the fire, appellant examined into his business and the condition of his affairs, and then thought he was solvent, but, being crippled, that, if he could get an extension of time of one, two and three years, he could pay his indebtedness in full. Acting on that belief, he made out a list of all his creditors, and the amount he owed each, together with a statement of his assets, and sent a list to each of his'creditors. In this list were the names of appellees, with a statement of the amount he owed them, a copy of which he also sent them.
Not a great while afterwards, upon a more thorough examination into his affairs, appellant became satisfied that he could not pay in full, but that he could pay sixty cents on the dollar in sixty days, and made out another list, similar to the first, including the names of appellees and the amount he owed them, with the proposition to thus pay them, and sent his clerk and attorney East to effect the arrangement, which they did.
Appellees went into the arrangement, and appellant paid them the amount agreed upon, and, having again resumed business, their former arrangement for the sale and use of inks was revived, and they were supplied, and after some eight or ten months, appellant claimed that he was not liable to pay for the inks which were destroyed, and that the names of appellees had been improperly included in the list and compromise, and that it had been made through mistake, and demanded the return of the money he had paid appellees oh the compromise, which they refused; and they demanded of appellant the inks then in his possession, which he declined to return. He thereupon brought suit against appellees for the money, and sued out an attachment, which was levied on the inks. Appellees brought an action to recover the price of the inks sold and used, and for the price of those not returned on the demand. On the trial, in both cases, the parties, by stipulation, waived a jury and submitted them to the court for trial. The court, in each case, found the issues against appellant, and rendered judgment against him for costs in the suit brought by him, and for the value of the inks received and not accounted for by him in the suit by appellees.
In the decision of these cases, the facts being so inseparably connected, and all depending on the same questions, we have considered them together, and as but one. This is the more appropriate, inasmuch as they were tried at the same time, and as one case, in the court below, although they are brought here on separate records.
Appellant claims that the evidence establishes a clear mistake in making the compromise with appellees, and that their claim was not intended to be included in the list of his creditors.
On a careful examination of all the evidence in the case, we are compelled to concur with the judge who tried it below. It is not credible that a good business man, engaged in a full and careful investigation of his affairs, under the circumstances and for the purposes that induced this examination, could, by mistake, have had the names of appellees, and the amount affixed to them, inserted in the first list, and again after a more careful and scrutinizing revision of the whole affair. It seems to us that, even if he co.uld have made the mistake in the first list, he could not have failed to detect it in the second. He says that he trusted to his clerk to make the list, but the evidence shows that it was presented to him and examined and approved. He does not deny that he saw appellees’ names and the amount on the list, but he simply says that he don’t remember to have noticed it. We must conclude that his memory is at fault, as he was, in making these lists and compromise, engaged in perhaps one of the gravest affairs of his life, when, if ever, his whole attention and his utmost business capacity would be brought into requisition. He, no doubt, felt and knew that his future as a business man all depended upon the result, and he would assuredly then proceed with care, in ascertaining every dollar for which he was liable. We are therefore impelled to the conclusion that he deliberately intended to include the appellees and their claim in the compromise, and having done so, he can not now repudiate the compromise and recover back the money.
It is objected that, under the arrangement, appellees were not entitled to recover for the unsold inks. They were invoiced and charged to appellant as though the sale had been unconditional. He had, however, the right to return any unsold portion when' he chose, and pay for such as he had sold or used ; and, under the arrangement, it must be implied that appellees had, at will, the right to repossess themselves of the portion not disposed of, at anytime, on demand, unless appellant saw proper to retain them, and make them unconditionally his own. The legal effect of the arrangement was, that it was a sale with the privilege of returning the property when he might choose, or' on the demand of the seller. He had the right, at any time, by giving notice to appellees that he would take the property at ten per cent less than the invoice price, to make it his own, or to do so by refusing to deliver it to them upon their demanding it.
But it is insisted that there was not a sufficient demand made, nor a refusal to deliver the property. It is true that there was not a formal demand, but there was enough said to convey to the mind of appellant that appellees wanted their property, and that is all the law requires. That he so understood it, is manifest from his declining to deliver the inks until .he should hear from appellees. This was a refusal to surrender the property on demand, and, by the refusal, he made the property his own, and rendered himself liable to pay for it the price fixed by the agreement, and the court below did not err in rendering judgment for that sum.
The judgment of the court below is affirmed in both cases.
Judgment affirmed.