Gehr v. Hagerman

Walker, J. It is urged that the court erred in receiving evidence that plaintiff had used the land in controversy, from the time of the purchase until the commencement of the suit, by cutting and removing farm timber and fire wood. If this evidence was legitimate for any purpose, then it was properly received. The grounds of recovery relied upon were, that plaintiff had rescinded the contract of purchase, and to rebut that presumption the evidence was proper for the consideration of the jury. The plaintiff, before he could rescind, was bound to restore the property, or at least offer to restore it to the defendant, after having performed, or offered to perform, his part of the agreement. As he at no time offered to restore the land, or declared the contract rescinded, it could only be determined from the circumstances, whether such was his design, and for that purpose, this was proper evidence. If he used and enjoyed the land as his own, it tended to rebut the presumption that he had any such intention. The evidence fails to disclose any such intention prior to the institution of this suit. The fact that he sued to recover back the purchase money, his abandoning the use of the land and a refusal to receive a deed, if distinctly manifested before suit was brought, would establish a design to rescind the contract. But if he used the land up to the time the suit was instituted, that fact would go far to rebut the presumption of such a design. Usually before a party can rescind a contract, he must restore, or offer to restore, what he has received on the contract, and place the opposite party in the same situation as he was at the time the agreement was entered into by the parties. A party has no right to claim all the benefits of the contract, and at the same time insist that it is rescinded. If the use of this land by appellant continued up to the time he instituted this suit, it unexplained, would preclude him from insisting that there had been a rescission. Again, after the purchase was made, one Harrison recovered a judgment in the Tazewell Circuit Court, against Nicodemus, and plaintiff in error, which became a lien upon the land in controversy. If that judgment remained unsatisfied at the time a rescission of the contract was attempted, it being a lien upon the land, and it being liable to be sold under this judgment, plaintiff in error was not in a position to insist upon a rescission, and any such attempt was unavailing. Or if by the use of the land, he had destroyed its value by appropriating the timber to his use, and it had thereby become of no other or of but little value, then he procured the benefit of his contract, and could not rescind and abandon the agreement. These are questions for the jury, and must be determined from the evidence. The court erred in giving the second of the defendant’s instructions. It was too general, and left the jury to determine what acts the law required the plaintiff to perform, before he could rescind the contract. It is the province of the court to instruct the jury as to the law, and for the jury to find the facts. This instruction leaves the jury to find both the law and the facts. It should have informed the jury what acts the law required the plaintiff to perform, before he could insist upon a rescission, and left the jury to find whether the evidence proved their performance. For this error the judgment of the court below must be reversed, and the cause remanded. Judgment reversed.