Avery v. Cullen

Sale op Mining Stock—Contract of Vendor to Repurchase—Dissatisfaction—Sufficiency of Complaint and Findings.—In an action on a contract to repurchase mining stock sold by defendant to plaintiff and his assignor within eighteen months, upon their expressing dissatisfaction with the purchase within that period, and to repay the purchase price with interest at the rate of ten per cent per annum, where the complaint sets forth the contract, and alleges that before the expiration of eighteen months plaintiff and his assignor did become 'dissatisfied with the stock purchased and notified defendant of that fact, and alleged that the stock of the mining company was wholly valueless, it sets forth a sufficient cause of action, and findings based upon the truth of the averments of the complaint are sufficient to support a judgment against the defendant for the agreed amount.

Id.—Averment and Finding of Tender of Stock and Demand After End of Period—Cause of Action Arising upon Dissatisfaction Expressed.—Although it is alleged and found that the stock was not tendered back nor repayment of the money demanded until after the expiration of eighteen months from the date of the sales, yet the agreement having been to repurchase when the purchasers became dissatisfied with the stock, upon the giving of their notice of such dissatisfaction the cause of action then arose, and defendant then became immediately liable for the money he had agreed to pay in that event.

Id.—Findings — Dissuasion by Defendant — Waiver of Time of Tender.—Where the facts as found by the court show that the failure of plaintiff and Ms assignor to insist upon the repayment of the purchase price and interest within the eighteen months was due to the acts of defendant in persuading them not to do so, and this being true, defendant could not refuse to comply with the terms of Ms agreement to repurchase, on the ground that the tender of the stock was not made in time.

Id.—Rescission of Purchase—Tender of Worthless Stock not Required.—If the case is to be as one of rescission of the contracts of purchase of the stock, then no tender of the stock found by the court to be valueless and never to have had any value need be made. A party rescinding is only required to tender back things received by Mm wMeh are of value.