Havey v. Petrie

Grant, J. Plaintiff and defendant traded horses, defendant paying $10 in exchange. The horse which plaintiff received from defendant was, at the time of the trade, affected with the glanders. Plaintiff called defendant’s attention to the fact that the horse had some disease, to which defendant replied that it was only the distemper. The evidence of plaintiff tends strongly to show that defendant knew that the horse had the glanders. Plaintiff, without any demand or notice of rescission or offer to return the horse and the $10, brought this action of replevin. The court directed a verdict for defendant. [191] According to plaintiff's evidence, a great fraud was committed upon him by defendant. Upon taking the proper steps to rescind, he was entitled to recover possession of the horse transferred to defendant. The learned counsel for plaintiff admit the well-established rule that he who seeks to rescind a contract on the ground of fraud must restore the other party, as far as he is able, to his former statu quo; that is, he must tender back what - he has received, and demand back what he has parted with. But they claim that the sale was absolutely void, under 3 How. Stat. § 2136«. This statute imposes a penalty for selling, etc., any domestic animal affected with any contagious or infectious disease when the person selling knows it’ to be so affected. It does not in terms, like the Sunday law, ■declare such a sale void. We do not think plaintiff placed himself in position to maintain the action. He might not, under this statute, be required to return the diseased horse, because it is made a penal offense to drive him through the country; but he was under obligations to give defendant notice of rescission, to tender back the $10, and ■demand possession. Defendant might have complied with such a demand, and was entitled to the opportunity to do so before being subjected to the expenses of litigation. Had the amount paid in exchange been $100, upon what principle could plaintiff be entitled to retain the $100 and recover the horse which he had traded? The principle is the same, however, whether the amount paid be large or small. Even in cases of fraud, _ a party is not entitled to the benefit of both ends of the bargain. Judgment affirmed. McGrath, C. J., and Long, J., concurred with’Grant, J.