Becker v. Trickel

Cassoday, J. The fact that the plaintiff had an adequate remedy at law may be an insufficient reason for dismissing the complaint, since the defendant had waived that objection by answering upon the merits. Sherry v. Smith, 72 Wis. 342. But we are inclined to think that such dismissal was authorized upon the merits. It was not alleged in the complaint, nor proved upon the trial, that the plaintiff ever returned, or offered to return, all the property he received upon the purchase.. Such property, according to his testimony, included two horses, two wagons, two sleighs, one harness, soda-water apparatus, 150 seltzers, 250 ginger-ale and 500 pop boxes and bottles,’ and so on. It is true, he also testified to the effect that, just before the commencement of the action, he offered “ back the business ” to the defendant on condition that the latter should repay him $700 of the purchase price, but that the defendant refused [486] to accept such offer. But that was not equivalent to a return of, or offer to return, all the property so purchased. A party seeking to rescind should make it appear affirmatively that he so returned, or offered to return, all the property received on such purchase. He cannot rescind .the contract in part, and affirm it in part. Hoffman v. King, 70 Wis. 381. Besides, .as intimated by the learned trial judge, the plaintiff was in possession, and had an opportunity for ascertaining the condition of the property purchased, for more than two months before commencing this action. Upon the whole record, we think the trial court was justified in refusing equitable relief. By the Gourt.— The judgment of the circuit court is affirmed.