Henry L. Crane Boot & Shoe Co. v. Trentman

Woods, J., (after stating the fads as above.) The general rule is well established that one who would disaffirm a contract must do so totally, and therefore must return whatever lie had received upon it. But at the .same time he is entitled to reclaim whatever he had parted with, and consequently his tender or offer to return need not be absolute, but upon condition, either express or implied, that he shall receive back his own, 622 not in part only, but entirely; and if this cannot be done, or is refused, he may withhold the tender, and bring it into court for final disposition, as justice may require. And if he prevails in the action, but does not obtain thereby complete relief, it would seem that he ought to be made good out of the money or property so tendered and brought into the control of the court. It would be a defective system of justice or procedure which could not afford such relief. Under the maxim that the law does not' require a vain thing to be done, a tender before bringing suit will not be deemed necessary if the vendee has parted with the goods in whole or in part, or in any way has put it beyond his power to make restitution; and it will be enough if the plaintiff bring into court whatever, if mutual restitution had been practicable, he would have been bound to surrender. But, as against a third party'who has come into possession of the disputed property as a transferee of the original purchaser or wrongful taker, it seems to be well established by the authorities cited, and I think consistently with principle, that neither a tender before suit nor a bringing into court is necessary. Of course a rescission is necessary The action, whether against the vendee or his transferee, is commenced and proceeds on that theory; but, the latter not being interested (as the decisions show) in the subject of tender, the mere bringing of the action against him is, as to him, a sufficient declaration of the plaintiff’s election to rescind, without previous declaration or notice to that effect, though a previous demand for the property may be necessary in order to put such transferee in the wrong. In Town of Springport v. Bank, 84 N. Y. 403, the doctrine of the cases on this point is stated in this way: “Even in such cases (for rescission) a third party, whose title depends upon a contract claimed to have been rescinded, cannot set up a want of tender by the plaintiff to the original party of the return of what the plaintiff had received under the original contract-.. For instance, when a sale of goods is rescinded by the vendor on the ground of fraud, and he reclaims the goods from a transferee of his vendee, the transferee cannot defend on the ground that the securities received by the vendor from the original vendee have not been tendered back to him. Kinney v. Kiernan, 49 N. Y. 165, 172. In such a case the title to the securities reverts to the original vendee on the rescission, but the right to insist upon their return is his, and not that of his transferee of the goods. Stevens v. Austin, 1 Metc. 558; Pearse v Pettis, 47 Barb. 276. ” The question here, however, is not whether a tender was necessary, but, one having been made and kept good by the bringing of the money into court, what shall be done with the money? The proposition that “Trentman acquired Miller’s rights,” or “stands in Miller’s shoes,” in respect to the property in question, is manifestly not true in fact, because, of the goods sold by the plaintiff, Miller had disposed of two-fifths before the transfer to Trentman; and, besides, the evidence does not showwhether the terms of the transfer were such, between themselves, as to give Trent-man any claim to stand in the place of Miller; and if the point 'were conceded, yet Trentman, not standing in the position of an innocent purchaser of the goods as against the plaintiff, cannot through Miller assert any right which Miller could not; and with the proceeds of plaintiff’s goods in his possession to the value of $900, not paid for except 623 with this money, Miller in good conscience could assert no right, as his administrator has conceded, and as some of the cases cited show. See, especially, Pearse v. Pettis, supra. In the judgment of the court, even without the consent of Miller’s administrator, this money should be returned to the plaintiff; but with that consent, on the authorities, and, as it seems to me, upon principle, there can be no doubt about it. So ordered.