Morrow v. Rees

The opinion of the court was delivered, October 23d 1871, by Sharswood, J. It will not be necessary to discuss the several specifications of error on this record in detail. It was an action of assumpsit brought to recover back the purchase-money paid for [373] an interest in a contract for a farm in Ohio, on the ground of fraud. Nothing is certainly better settled in this state than that it is necessary in order to sustain such an action to show an actual rescission by the party defrauded, notice of the rescission to the other party and in general an offer to return the subject, unless indeed it is utterly worthless at the time, so as to put the vendor in statu quo: Pearsoll v. Chapin, 8 Wright 9; Babcock v. Case, 11 P. F. Smith 427 ; Patton v. Burkholder, M. D., May 1871. Opinion filed, October 4th 1871 (antea, p. 248). The plaintiff in error complains in his fourth specification, that the learned judge below in affirming the plaintiff’s third point — in substance that if the jury believed the alleged fraud the plaintiff could recover— overlooked and in effect denied this well-settled rule. If this point had stood by itself it would undoubtedly have left the instruction to the jury open to this objection. But we must take the affirmance in connection with the answers given by the learned judge to the defendant’s fifth and seventh points. By the fifth the defendant requested the court to instruct the jury, “ that in order to rescind the contract and enable the plaintiff to recover back his purchase-money,,he was bound either to demand a return of his purchase-money and offer a re-transfer to the defendant of the said one-sixteenth interest in the land, or to give defendant unequivocal notice of his election to rescind the contract; and this he was bound to do promptly after he had discovered all the facts.” It is unnecessary to inquire whether under the circumstances of this case, a rescission did not ipso facto revest the interest in the defendant without any re-transfer or return of the receipt. The learned judge without qualification affirmed the defendant’s point, and it surely cannot lie in his mouth to object or to allege that inasmuch as it was in' the alternative it was inaccurate and that the judge should have gone further than he was requested. The answer to the plaintiff’s third point was therefore qualified by the answer to the defendant’s fifth point, and both being taken together there was no error of which the defendant had any right to complain. The law was given to the jury just as he requested it to be. By the seventh point of the defendant the court were asked to charge “ that the declarations made by the plaintiff to the defendant at the meeting in August 1865, as testified by Carroll, Becker and the plaintiff, did not amount to a rescission of the contract.” . This the court refused, but left it to the jury to determine. So that the only question fairly presented upon,this record is whether the declarations here referred to did amount to sufficient evidence of a rescission to be submitted to the jury. Rees, the plaintiff, testified distinctly that in that conversation he asked Morrow, the defendant, if he was going to repay him his money. Morrow said he could not do that. Now this was certainly evidence of rescission. What could be [374] more unequivocal than a distinct demand for tbe return of the purchase-money? Though neither of the other two witnesses testify with the same distinctness to this demand, yet there is nothing in their testimony which absolutely contradicts it, and if there was it would not be any the less a question for the jury. They both agree that the parties were excited and that strong language was used. Carroll says that' Rees charged Morrow with a breach of faith, and Becker says that when Morrow told Rees that he had his proper receipt, Rees replied that it was worthless and that he would make him suffer for it. The question then was fairly and properly submitted to the jury. The second and third assignments of error have not been pressed, as indeed they could not be with any show of reason, and the remaining ones are disposed of by the considerations which have been presented. Judgment affirmed.