Spaeth v. Ocean Park Realty Mining & Investment Co.

Appeal from Judgment—Dismissal by Consent—Affirmance.—The , effect of the dismissal of an appeal from the judgment by consent is to affirm the judgment.

Option to Rescind Sale of Mining Stock upon Dissatisfaction— Terms of Contract—Reasonableness of Time—Support of Verdict.—In an action involving an option to rescind a sale, of mining stock, upon dissatisfaction of plaintiff therewith, when the trial proceeded upon the theory that the jury wasi to determine the terms of the original contract, and the reasonableness of the time within which the rescission was sought, it is held the evidence is sufficient to support the verdict upon both issues.

Id.—Conflicting Evidence as to Terms of Contract.—Although the evidence was conflicting as to the terms of the contract, yet it is held that there is enough in plaintiff’s testimony to support a special finding of the jury as to the terms of the contract, and the verdict based thereon; and that the trial court, by denying a new trial, confirmed the verdict of the jury as to the terms of the contract, and that it cannot be said that the verdict upon that issue was without support.

Id.—Support of Verdict as to Reasonableness of Time—Question When for Court—Estoppel of Parties.—Although, when the terms of the agreement do not limit the time within which an option to rescind may be exercised, the law implies that it is to be performed within a reasonable time, and when the facts are undisputed or conceded, the question of reasonableness of time is for the court, yet when the court, at the request of both parties, submitted the question of the reasonableness of time to the jury, neither party is in a position to question- the action of the court, or the support of the implied finding that the contract was rescinded within a reasonable time, in the absence of any showing that the delay was unreasonable.

Id.—Special Pacts Showing Reasonableness of Time.—Where the answer admitted a demand made by plaintiff’s attorney for rescission of the- stock before suit, and for a return of the money, with an offer to restore the stock, and evidence shows that such demand and offer were authorized by plaintiff, and also that when the stock was sold with the privilege of returning it, when dissatisfied, defendants assured plaintiff that he would never be dissatisfied as the stock would increase in value, and the evidence further showed that there were three similar sales of stock, upon like conditions, in one of which, shortly before suit, defendant returned the money paid, these facts and circumstances in proof indicate that the parties agreed to an indefinite time, with all rights reserved, in which plaintiff might hold the stock until it should be finally determined whether he would keep it or rescind the same, if there was no promised increase in value; and these facts tend to show a rescission within a reasonable time.