Norton v. Young

Mellek C. J. delivered the opinion of the Court. It appears in this case that the recognizance was committed to the care of the officer who served the writ on the defendant, to be delivered to him ; and that immediately after it was so delivered, the writ was served. From these facts it is evident that the writ was drawn, and the action commenced, before the recognizance was returned to the defendant. This would seem to be an objection to the maintenance of this action, even if it had been returned and the action commenced within one month after the right to rescind the contract had accrued. But in answer to this objection it is urged that a return of this document to the defendant was not necessary to vest a right of action in the plaintiff ; but that as soon as he had given him notice that he meant to rescind the contract on account of the defendant’s misrepresentations, he had done all the law required, and it was the duty of the defendant to come and receive or send for the -recognizance ; and that such offer to abandon the contract, accompanied by such notice was sufficient. The cases which have been cited do not appear to support this position. In Kimball v. Cunningham 5 Mass. 502. Parsons C. J. says — u If he “ (the plaintiff) chooses to consider the contract as void, he must [34] “ return the horse within a reasonable time. — If he had exchanged “horses and given money as boot, he may not only maintain that “action for his money, but also trover for the horse he parted .“ with in exchange ; but he ought not to retain any part of the .“consideration he received upon the sale or exchange ; — as, if “ in the exchange he received money in boot, he ought to return “ not only the unsound horse, but also the money received.” The case of Conner v. Henderson 15 Mass. 319, proceeds on the same principle. The Court decided that it was the duty of the plaintiff to return the casks to the defendant, before a right of action could accrue ; — and this must" have been done in a reasonable time. The same doctrine is recognized in the other two cases cited by the defendant’s counsel. It does not appear to .have been contended in argument that the return of the recognizance to the defendant after the lapse of more than a year was within a reasonable time. These cases shew what is meant by placing things in statu quo, in order to enable a party to rescind a contract. On the facts before us we are of opinion that the action cannot, be maintained. Plaintiff nonsuit.