Biescar

Appeals from a judgment for the defendant, and an order denying the plaintiff’s motion for a new trial. This is a suit by the indorsee against the indorser of a draft on a New York bank, the payment of which was refused by the bank under the defendant’s instructions.

The case, as shown by the answer and findings, is: The plaintiff, by written contract of date December 26, 1903, agreed with the defendant and one Bassett to sell them “the business consisting of stock, hardware and fixtures now in building” described in the agreement, at invoice prices, etc.; and the draft sued upon constituted a part of “the deposit of $500” made by the vendees to the vendor; and which, it is provided, should “be forfeited by them to said first party” in the event of failure of the second parties to pay the balance of the purchase price. The defendant and his covendee, on account of certain alleged misrepresentations of the plaintiff as to the aggregate value of the property and certain other matters alleged in the answer, refused to proceed with the contract; and on the eleventh day of January, 1904, attempted to rescind the contract, notifying the plaintiff thereof and demanding the repayment of…