Buckingham v. Osborne

Park, C.' J. There was nothing in the contract of sale of the horse which gave the plaintiffs a right to return the animal to the defendant and l'escind the contract. They claimed the right so to do because they afterwards discovered that the horse had a cough, which they claimed that he had at the time the contract was made. But however this may have been, no right of rescission existed in the plaintiffs unless there was a condition in the contract of sale to that effect. If the horse did not answer the terms of the contract, there being no fraud in the sale, the plaintiffs’ remedy was on the contract for a breach thereof. 1 Swift Dig., 383. It is further claimed that ihe contract was within the statute of frauds, and therefore void, and that consequently the title to the horse never passed to the plaintiffs. This claim is based upon the fact that the horse was not delivered at the time the contract was made, it beiug conceded by the plaintiffs that the case was not taken out of the statute by a compliance with any other of its provisions. But the horse was afterwards delivered under the contract, and however inoperative the agreement may have been previous to such delivery, the tender and acceptance of the horse under the contract had the same effect as a delivery at the time the contract was made. There is nothing in the finding tending to show that the acceptance was conditional; that the horse was received for the purpose of being examined in order to ascertain whether he answered the terms of the contract; but on the contrary the finding is, that the tender and acceptance were absolute; and this being so, the contract could not be’ rescinded except by an agreement of both the parties to that effect. If the defendant had accepted the horse as his prop [140] erty when the plaintiffs returned him, the contract would have been rescinded. But this was never done. When the plaintiffs returned the horse the defendant refused to receive him, and afterwards brought his suit for the purchase money, and sold the horse as the property of the plaintiffs. This being so, the horse continued to be the property of the plaintiffs, from the time he was delivered to them, notwithstanding their efforts to rescind the contract. The want of mutuality in the" attempted rescission prevented a re-transfer of the property. We come now to the main question in the case, which is, can the defendant justify the taking of the property by legal process which he instituted and attempted to serve? The process was good upon its face, but the claim is that it was never served upon the present plaintiffs, who were the defendants in it. The statute prescribes the mode, and the only mode, for the service of process. It is as follows in relation to writs of attachment. “ In every case of attachment the officer serving the process ' shall leave with the person whose estate or body is attached, or at the place of his usual abode, if within this state, a true and attested copy of the process, and of the accompanying declaration or petition, and of his return thereon, describing any estate attached.” The officer in this case undertook to serve the process by leaving a true and attested copy, as the statute prescribes, at the usual place of abode of the defendants therein; but the officer mistook the place of their abode, and left the copy at some other place, so that there was in fact no service of the process. But the officer made return on the process that he had left such copy at such usual place of abode of the defendants, and the question is, does this fact justify the taking of the property ? If the officer, after attaching the property, had made no further attempt to serve the process, no one would question the liability of the defendant. But does the fact that he attempted further service, which was wholly nugatory, because he did not do what the statute prescribes, make any difference? There is no such thing as a partial service of a process upon a-defendant. Inasmuch as the mode of service is prescribed by the statute, whatever has been done in a given case, [141] like the present, must necessarily amount, either to a full and complete service of the process, or to no service at all. But it is said that the officer’s return that he had served the process in the mode prescribed by the statute, is primá facie evidence that he had done so in fact, and that this was sufficient to require the defendants therein to appear in the court to which the process was made returnable and make answer to the proceeding. But the return of the officer was open to contradiction, and it was contradicted, and the court abated the process because it had no jurisdiction of the defendants in it for the want of legal service of the process upon them. The defendants could have waived the want of service, and would have waived it if they had seen fit to answer to the merits of the case, but this they did not do, and the court was left without jurisdiction of the process. A majority of the court think it is clear that the proceeding on which the property in question was taken affords no justification to the defendant; and they therefore advise a new trial. In this opinion Pardee and Loomis, Js., concurred; Car. penter and Poster, Js., dissented.