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Opinion by

William W. Pouter, J.,

This action is in replevin. The chattel taken under the writ was replaced by the bond filed by the defendant. The question to be determined was whether the plaintiff was entitled to the possession of the piano taken under his writ. If he had such right his damages would be measured by the value of the chattel at the time of its seizure under the writ.

The defendant is a farmer living about seven miles from Lancaster. The plaintiff is a dealer in musical instruments in that city. In the latter part of August, 1893, the defendant selected, in the plaintiff’s store, a grand piano for $700 and a violin for $50.00. A day or two later the piano was taken to the farm, but before closing the sale the plaintiff’s salesman drew from the defendant the statement that he owned his farm and that “ the beauty of it was, it was paid for.” This declaration of responsibility seems to have been sufficient to induce the delivery of the piano and the taking of a note for $700 for the price. Within two weeks, the defendant confessed two judgments to his father for $5,000 each and a judgment to his wife for $3,300. Upon the first judgment, execution was issued. The defendant then made an asignment for creditors. Included among the goods was the piano bought from the plaintiff. At the sale the plaintiff gave notice that he claimed ownership of the piano. The purchaser of it was a relative of the wife of the defendant. The piano was subsequently alleged to have been given to her and allowed to remain in the defendant’s parlor just as it had before the sale.

The plaintiff set up fraud in the purchase and rescission of the sale, on discovery of the fraud, by notice at the sheriff’s sale. The proof of fraud consisted in showing that the defendant by his statement in regard to his farm, deceived the plaintiff as to his responsibility: in showing that the defendant subsequently boasted of the deception thus practised on the plaintiff; in showing that the defendant was absolutely insolvent; that he concealed the fact of his insolvency; in showing that he bought large quantities of goods on credit from other merchants at this particular time; that the purchase was made as part of a scheme to increase assets to be sold under judgments *91to be immediately confessed to the defendant’s father and wife.

The defendant denied all allegations of fraud, trickery or intent to deceive. The court on this branch of the case, rightly relegated the question of fraud to the jury,—instructing them that if the purchase was honest and without fraudulent intent and conduct, the plaintiff could not recover, but that if the purchase was fraudulent, then the verdict should be for the plaintiff for the value of the piano.

It is true that if the plaintiff had stopped at proof of insolvency, there would not have been sufficient evidence of fraud to affect the sale. But by the other items of proof noted above, additional circumstances were exhibited which tended to show trick and artifice and conduct which reasonably involved false representation. The proof, therefore, was sufficient to take the case to the jury: Bughman v. Central Bank, 159 Pa. 94.

The defendant urged \ipon the court below and upon this court, principles of law which have no application to the issues involved. The paper, called by the defendant the contract of sale of the piano, was not attempted to be affected in its terms by the evidence of fraud submitted by the plaintiff. The assault was made upon the integrity of the transaction itself. Was the sale itself voided by the fraud? Was the contract of sale lawfully rescinded on the ground of fraud ? These questions are not affected by authorities bearing upon the character of evidence required to affect writings or indicating the extent to which parol evidence may be accepted for such a purpose.

The defendant, however, by leave of court, filed an additional plea of property in Sarah Jane Groff, his wife. The court was asked to charge that if the piano was bought at the sheriff’s sale by Wayne I. Groff without notice or knowledge of plaintiff’s claim and without knowledge of fraudulent acts by the defendant, any person acquiring title from him would take a good title. The effect of this was a request to charge that the title of Mrs. Groff, who it was alleged became possessed of the piano by gift from the purchaser at the sheriff’s sale, was good, and that the plaintiff’s right to possession was thereby defeated. The learned trial judge went astray in his view of this branch of the case. He seems to have been diverted by the thought that the trial was between the plaintiff and defendant as for a tort, *92forgetting that the real issue was the right of the plaintiff to have possession of the piano, not his right to pursue the defendant either for its price or for damages for any tort committed in connection with the purchase of the piano.

A good title shown in the defendant’s wife would have defeated the plaintiff as well as a good title shown in the defendant himself : Wilson v. Gray, 8 Watts, 25. The learned judge dropped out of the trial all questions relating to the assertion of title in Mrs. Groff and erred in his answers to points and in failing to submit to the jury the question whether on the oral proof, the vendee of the sheriff took title with notice of the claim of title by the present plaintiff. It is true, that the evidence is overwhelming on this point, but as the facts of notice and knowledge are dependent on testimony, the question whether the notice was given and received should have been sent to the jury with proper instructions as to the rights of innocent third persons for a valuable consideration who might have taken title from the vendee, in ignorance of defect in title. See Levy v. Cooke, 143 Pa. 607.

From what has been said, it must further appear that the court erred in failing to affirm the defendant’s ninth point which was, “ If A. E. Groff, the defendant, was insolvent at the time of the purchase of the piano, that fact alone does not permit the plaintiff to rescind the contract of sale, nor entitle him to a verdict in this case.”

Five or six of the assignments of error relate to the admission of proof showing acts done by the defendant contemporaneously with the purchase from the plaintiff, indicating a scheme or general purpose to procure merchandise on credit without intention or ability to pay for them and by subsequent confession of judgment, to make them liable to execution. This evidence was, speaking generally, admissible. It went towards showing the general purpose and intent of the defendant in the transaction with the plaintiff. The dealings being contemporaneous, similar in kind and having an apparent common and fraudulent purpose, were sufficient, in conjunction with evidence of gross insolvency, to subject the question of fraud and artifice to a jury.

In conclusion, attention may be called to the fact that the true measure of damages in case of a finding for the plaintiff *93would seem to be not the value of the chattel when originally sold with interest, but its value when the plaintiff became entitled to its possession by seizure under the writ of replevin.

The judgment is reversed and a venire facias de novo is awarded.

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