Hutchins v. Davis

*72 EeviN, J. Nothing is better settled in law than the rule that in all cases tried by a jury the judgment must be supported by and conform to the verdict in all substantial particulars. Speight v. Anderson, 226 N.C. 492, 39 S.E. 2d 371; Supply Co. v. Horton, 220 N.C. 373, 17 S.E. 2d 493; Durham v. Davis, 171 N.C. 305, 88 S.E. 433. When the verdict of the jury in the case at bar is interpreted in the light of the pleadings, the evidence, the issues, and the charge, it is plain that it contains no finding sufficient to impose any liability upon the feme plaintiff, Cleota Hutchins, with respect to the counterclaims asserted in the answer of the defendant. King v. Elliott, 197 N.C. 93, 147 S.E. 701; Sitterson v. Sitterson, 191 N.C. 319, 131 S.E. 641, 51 A.L.R. 760; Merrill v. Tew, 183 N.C. 172, 110 S.E. 850; Croom v. Lumber Co., 182 N.C. 217, 108 S.E. 735; Balcum v. Johnson, 177 N.C. 213, 98 S.E. 532; Weldon v. R.R., 177 N.C. 179, 98 S.E. 375; Jones v. R. R., 176 N.C. 260, 97 S.E. 48; Bank v. Wilson, 168 N.C. 557, 84 S.E. 866; Donnell v. Greensboro, 164 N.C. 330, 80 S.E. 377; McAdoo v. R. R., 105 N.C. 140, 11 S.E. 316. Hence, the court erred in adjudging that the defendant is entitled to recover anything of the feme plaintiff, Cleota Hutchins, upon the counterclaims, and her exception to the judgment is sustained. It is otherwise, however, with reference to the male plaintiff, Garner Hutchins, for the reason that the answers to the fifth, sixth, seventh, eighth, ninth, tenth, fourteenth, fifteenth, sixteenth, and seventeenth issues fully support the adjudication that the defendant is entitled to recover $3,950.00 of the male plaintiff upon the counterclaims as damages for fraud and conversion. But we are constrained to hold that the exceptions of the male plaintiff to the submission of the second and third issues and to the adjudication based on the answers of the jury thereto that such plaintiff was not entitled to recover of the defendant upon the note for $3,500.00 are well taken. The execution of the note and chattel mortgage and the nonpayment of the note were not issuable facts. They were admitted by the answer, and the male plaintiff was entitled to judgment against the defendant on the pleadings for the principal of the note with interest' thereon from 27 May, 1947. This is true for the reasons set out below. When a person discovers that he has been induced to purchase property by the actionable fraud of another, he has the right at the outset to choose between two inconsistent courses with reference to his purchase. He may either affirm it or repudiate it. But he cannot do both, either in whole or in.part, for the law will not let him blow both hot and cold. The election must be made promptly and within a reasonable time after the discovery of the fraud. When once made,, the election is final and conclusive. The purchaser terminates his power to repudiate his purchase *73 if be voluntarily does some act in recognition of the validity of the contract of purchase after discovering ,the fraud. Ordinarily, the purchaser is not allowed to repudiate the transaction unless he is in. a position to restore to the seller what he has received under it. Consequently, the purchaser should return or offer to return to the seller the property received by him under the sale if he desires to repudiate the transaction. When he has done this, he may resort to remedies calculated to place him in status quo. Thus, he can recover the purchase price or any portion of it he may have paid, or avail himself of the fraud as a defense in bar of recovery by the seller of the purchase price or any part of it which remains unpaid. Moreover, he may be entitled in a proper case to the equitable remedies of rescission and cancellation or reformation. But the purchaser has the right at his election to aiBrm the contract of purchase and retain whatever property or advantage he has received under it. When he does so, the transaction is validated as to both parties, and either may sue the other to enforce any rights arising to him under the contract. In such case, the purchaser is liable to the seller for any portion of the purchase price which remains unpaid. While his affirmance ends his right to rescind the contract, it does not prevent him from recovering from the seller either in an independent action or by way of counterclaim when sued by the seller for the purchase price the damages sustained by him by reason of the fraud of the seller. As a general rule, the damages recoverable by the defrauded purchaser in such event consist of the difference between the value of the property sold (as it was and as it would have been if it had come up to the fraudulent representations. These legal propositions are fully sanctioned by many well considered decisions of this Court. Randle v. Grady, 228 N.C. 159, 45 S.E. 2d 35; Small v. Dorsett, 223 N.C. 754, 28 S.E. 2d 514; Buick Co. v. Rhodes, 215 N.C. 595, 2 S.E. 2d 699; Frick Co. v. Shelton, 197 N.C. 296, 148 S.E. 318; Glass v. Fidelity Co., 193 N.C. 769, 138 S.E. 143; Fields v. Brown, 160 N.C. 295, 76 S.E. 8; Van Gilder v. Bullen, 159 N.C. 291, 74 S.E. 1059; Machine Co. v. Feezer, 152 N.C. 516, 67 S.E. 1004; Modlin v. R. R., 145 N.C. 218, 58 S.E. 1075; May v. Loomis, 140 N.C. 350, 52 S.E. 728. Here, the defendant affirmed the purchase of the Campus Corner Cafe by retaining the benefits received by her under the sale. Consequently, the male plaintiff was entitled to maintain an action against her on the note representing a portion of the purchase price, subject, of course, to .any counterclaim she had against him. We have carefully studied all of the remaining assignments of error and have found nothing therein prejudicial to any substantial right of the male plaintiff. *74 Our conclusions necessitate tbe grant of a new trial to tbe feme plaintiff. Rut it is not so witb respect to tbe male plaintiff because tbe truth relating to all matters in controversy between bim and tbe defendant bas been determined by tbe verdict of tbe jury and tbe admissions in tbe pleadings. Tbe judgment between tbe male plaintiff and tbe defendant is modified so as to award tbe male plaintiff judgment against tbe defendant on tbe note for tbe sum of $3,500.00 witb interest at tbe rate of six per cent per annum since 27 May, 1947, and so as to tax against tbe male plaintiff all costs in tbe court below other than those incident to making tbe feme plaintiff a party to tbe action. As thus modified, tbe judgment between the male plaintiff and tbe defendant is affirmed. The costs of all parties in this Court will be taxed against the male plaintiff. Judgment modified and affirmed on tbe appeal of tbe plaintiff, Garner Hutchins. New trial on tbe appeal of tbe plaintiff, Cleota Hutchins.