Opinion,

This was a feigned issue to try the title to certain personal property levied upon by the sheriff. It appears that Charles A. Reece, the defendant in the execution, ordered a quantity of boots and shoes from Charles Freedman, the plaintiff, who was a manufacturer thereof, doing business in Philadelphia. Freedman sent the goods to Reece at Lancaster by four separate shipments commencing on April 22d and ending on May 7, 1886. Reece received them, placed them in his store with his other stock, and retained them without objection until the 21st of the following June. In the meantime he had sold *30boots and shoes, part of said shipments, to the extent 1117.85. On June 21st, he returned to Mr. Freedman by express the balance of said goods remaining unsold. If any explanatory letter accompanied them it has not been given, but Mr. Reece in his testimony states his reasons for returning said goods as follows: “ I sent him (plaintiff) a lot of goods, I think on the 21st of June; I found the goods didn’t give satisfaction to my customers, and I was compelled to send the goods back, and paid him for what I had sold, and he wrote me a letter in reply, refusing to accept the goods.” The result was they remained in the express office in Philadelphia, Mr. Freedman refusing to receive them, until Mr. Reece was notified by the express company to take them away or they would be sold to pay charges, when, acting under the advice of counsel, he had them returned to his store in Lancaster. Mr. Reece, having refused to pay, Mr. Freedman brought a suit in the Common Pleas of Lancaster county to recover the balance unpaid of his bill. Thus the matter stood until Mr. Reece’s stock was levied npon by the sheriff, when Mr. Freedman made claim to the unsold portion of the goods as his property, and gave bond to the sheriff under the interpleader act. The jury found that the goods in question were the property of Reece, and of course liable to the execution.

The learned judge below in his instructions to the jury, applied the ordinary rule, that as against creditors a delivery of personal property must accompany a sale. We see no error in this. The case was argued here upon the theory of a complete rescission of the contract by Reece, and that he had never accepted the goods; that the title to them was never vested in him and that upon their return after being rejected by Freedman, he held them merely as the bailee of the latter. If the facts were so the case would assume a different aspect. But Reece received the goods, placed them upon his shelves, kept them there without objection for about two months,. and actually sold a considerable portion of them. He then, on June 21st, returned the balance <jf them for no better reason than that they did not suit his customers. At that time his power to rescind was gone, and the goods were his. Freedman might have permitted him to rescind but he refused, and emphasized his refusal by bringing a suit for their value. Under such *31circumstances lie could not get back title without a corresponding delivery oE possession as in other eases. Much less could he take the property out of the grasp of an execution by a mere claim of ownership. The plaintiff was playing a game of fast and loose and has lost. He might have saved himself bat missed his opportunity. We cannot help Mm.

Judgment affirmed.