James Music Co. v. Bridge

WiNslow, C. J. The evidence shows conclusively that the sale of the property in question by the defendants to Peckham was complete before any contention arose between the parties. A bill of sale had been duly executed and delivered, the cash payment agreed on had been made, and the notes agreed on had been delivered, so that the consideration had passed and the lease of the store containing the goods had been assigned and delivered to Peckham. Nothing further was necessary to make a complete transfer of title to Peckham and entitle him to possession. Abraham v. Karger, 100 Wis. 387, 391, 76 N. W. 330. If the defendants had in fact been defrauded they might doubtless rescind the contract or affirm it and recover damages. If they chose to rescind they must, under well-established legal principles, [513] return tbe consideration so as to restore the other party to his original situation. They cannot both rescind and affirm in the same breath. The partial exception to this rule noted and acted upon in Friend Bros. C. Co. v. Hulbert, 98 Wis. 183, 73 N. W. 784, and Gay v. D. M. Osborne & Co. 102 Wis. 641, 78 N. W. 1079, has no application here. In the present case the defendants are seeking to hold the property as security for the payment of the notes, and they have thus in the most unequivocal terms elected to affirm the contract. Having elected to affirm with full knowledge of the facts they cannot afterwards rescind. Nor can there be any recovery of damages against the plaintiff, for the reason that the court has found upon sufficient evidence that it was entirely free from fraud. Nor does it appear that there was in fact anything in the transaction amounting to actionable fraud. The alleged representation made by Peckham that he proposed to continue the business at the old stand was simply a statement-of future intention and not of an existing fact, and, while it might be reprehensible if untrue, it affords no basis for rescission. Tufts v. Weinfeld, 88 Wis. 647, 60 N. W. 992. Furthermore, in the present case there is no evidence that this promise or representation was relied on by the defendants or served as an inducement to consummate the trade. It was suggested that there might exist a right of stoppage m transitu which would justify the defendants in holding the property until the notes were paid. But in order that this right should exist there must in fact be a transit between buyer and seller — that is, the goods must be in the possession of a carrier or middleman — and the buyer must be shown to be actually insolvent, neither of which facts appears in the present case. 26 Am. & Eng. Ency. of Law (2d ed.) 1086-1089. The judgment must therefore be affirmed. By the Court. — It is so ordered.