Herman v. Haffenegger
Before: Department, Thornton
Synopsis
Rescission of Contract.—A party entitled to rescind a contract on the ground of fraud, can only do so by returning, or offering to return, everything of value which he has received under it, and cannot maintain an action until he has done so. Held, accordingly, in an action to rescind a contract, where the proofs failed to show such a return, or offer to return, that the plaintiff was rightly nonsuited, although he was prepared to make, and did make, the offer at the trial.
Department No. 2, Thornton, J.: The plaintiff herein instituted an action to annul a contract made Avith defendant, to recover the money paid him, and to compel him to reconvey certain real estate which plaintiff had conveyed to him under the contract.
The ground of recovery alleged is the fraudulent representations made by defendant with regard to the subject-matter of the contract, on account of which fraud, the plaintiff alleges that prior to the-commencement of the action, he rescinded the contract, and had offered to restore to the defendant Avhat he received thereunder.
[163]At the trial the defendant moved for a nonsuit, on the following grounds:
“ 1st. That plaintiff was not entitled to rescind the contract, without returning, before suit, what he had received from defendant. 2nd. That the proof did not correspond with the algations of the complaint. 3rd. That the testimony did not tend to show that plaintiff did comply with the terms of the contract between him and the defendant. 4th. That it did not appear that plaintiff had made a sufficient tender to defendant to entitle him to a rescission of the contract, and to sustain the action.”
The Court granted the motion.
A new trial was applied for and granted, and from the order granting a new trial this appeal is prosecuted.
It appears, from the statement on appeal, that the plaintiff, to sustain the issues on his part, made prima facie proof of the contracts, of fraudulent misrepresentations, and of payments as alleged, and then follows this admission: “ And defendant admits that plaintiff made sufficient proof to sustain his case, except as to tender and as to time of attempting to rescind.”
The statement then sets forth the evidence of what plaintiff received from defendant under the contract, and what was done by plaintiff in regard to a rescission.
The points left open for consideration are, first, as to tender, and second, as to time of attempting to rescind.
We are of opinion that the attempt to rescind was made within the time required by law.
The word “ tender,” as used in the admission above quoted, must be interpreted as an offer to restore or return what plaintiff had received of defendant under the contract.,
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