#### Charles Whitney v. Frank C. Seidel, Appellee. Lawrence A. Doolittle, Appellant.

Gen. No. 6,401.

(Not to be reported in full.)

Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the April term, 1917.

.Reversed and remanded with directions.

Opinion filed October 16, 1917.

Statement of the Case.

Bill of interpleader by Charles Whitney, complainant, against Frank C. Seidel and Lawrence A. Doolittle, defendants, as to a sum of $1,500 held by complainant in escrow and paid by him into court, whereupon he was discharged from liability. From a decree for defendant Seidel for $841.52 and for defendant Doolittle for the balance of the sum, defendant Doolittle appeals and defendant Seidel assigns cross error.

Clarence W. Diver and Charles H. King, for appellant.

*580Abstract of the Decision.

Sales, § 96 * —what constitutes fraud by seller justifying rescinding of contract. Under a contract for the sale by one and the purchase by the other of the two signers of a contract of a certain stock of goods in a store, providing that the seller should continue in and conduct the business up to a certain date with a view to reducing the stock on that date to an amount not exceeding a certain invoice value, a secret removal by the seller and appropriation to his own usé on the day preceding such date of the best and most valuable of the goods constituted a fraud upon the purchaser, legally justifying him in rescinding the sale, and entitling him to a return of part of the purchase money paid by him in escrow under the contract, on a bill of interpleader filed by the holder in escrow."

Cooke, Pope & Pope, for appellee.

*

See Illinois Notes Digest, Vols. XI.to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Niehaus

delivered the opinion of the court.