Glass v. Rauwolf

Opinion by Mr. Chief Justice Sterrett, One of'the two main questions of fact presented by the testimony, in this action of replevin, was whether, in procurement of the agreement for exchange of defendant’s stock of store goods for certain real estate of the plaintiff, misrepresentation and fraud were practiced by the latter ? The other was whether the goods were actually delivered by the defendant to the plaintiff, pursuant to the agreement? Both of these questions were submitted to the jury on sufficient evidence in a fair and adequate charge of which defendant has no just reason to complain. The verdict is necessarily predicated of their finding that there was no fraud, and also that the stock of goods was delivered to plaintiff according to contract. In view, of these findings of fact, defendant could not have been injured by the refusal of his last point for charge, which was to the effect that a party has a legal right to refuse performance of a contract which he thinks was induced by fraud, — even if his point had been proper!}' [661] drawn. The same remark is applicable to defendant’s contention that the affirmance of plaintiff’s second point ignored the question of defendant’s intention to pass title to the property Iqr the acts specified in that point. If this was error, it was cured by the subsequent affirmance of defendant’s second, third, and fourth points, wherein the jury were in effect instructed that their verdict should be for defendant, unless he voluntarily and without trick or artifice, practiced upon him, delivered possession of the goods in question, intending at the time to invest plaintiff with the ownership thereof absolutely and unconditionally. When considered in connection with other parts of the charge, the remaining instructions complained of are free from error. There appears to be nothing in any of these specifications that requires discussion. We find nothing in the record, as presented to us, that calls for a reversal of the judgment; but, inasmuch as it does not appear that plaintiff’s tender of performance, on his part, — by delivery of good and sufficient deeds of conveyance of the lands which he agreed to give in exchange for defendant’s stock of goods, — was properly kept up, he should not be permitted to issue execution on the judgment until such deeds are duly delivered to the defendant or deposited in the court below for his use. Judgment affirmed; and it is ordered that no execution shall issue thereon, until the court below is satisfied that the plaintiff has performed his part of the contract as above stated, nor until leave of said court first obtained.