7 Neb. 424 | Neb. | 1878
This is an appeal from Otoe county. The main question for consideration is whether upon the facts found by the referee under the pleadings the district court was right in denying the relief prayed.
This case was commenced on the second of December, 1872, and in effect its object was the rescission of a contract made on the twenty-first of May of that year, by which the defendant Waters sold and transferred to the plaintiff, and one Eoberts, what was known as the Chronicle printing establishment, including the press, types, subscription list, etc., for the agreed price of six thousand dollars. Of this sum five thousand dollars were made payable in five equal installments, at six, twelve, eighteen, twenty-four, and thirty months respectively, and promissory notes given accordingly, secured by mortgages upon the property in question, and certain lots in Nebraska City. For the balance the purchasers assumed and subsequently paid certain claims then existing against the establishment for which Waters was liable.
In addition to these facts, about which there was no dispute, the referee found from testimony taken before him, that in making the sale Waters was guilty of many false and fraudulent representations respecting the condition of the property, especially as to the press, the number of subscribers, and the advertisements then in the paper, by which the purchasers were probably induced to pay a much larger price than they otherwise would, and considerably more than the property was worth. And it is right here, upon this question of fraud on the part of Waters, and the conduct of the parties on discovering it, that the whole equity of the case hinges.
In the petition it is not stated at what time the imposition was first discovered, which we regard as a very
It seems to be well settled that to entitle a party to rescind a contract for the sale of chattels on the ground of fraud he must offer to return the property received by him and demand a rescission within a reasonable time after the discovery of the fraud. Herrin v. Libbey, 36 Me., 350. Masson v. Bovet, 7 Denio, 69. Lindsley v. Ferguson, 49 N. Y., 623. 2 Parsons on Contracts, 279. Willoughby v. Moulton, 47 N. H., 205. Campbell v. Fleming, 1 Ad. & Ell., 40.
In the case last cited it was considered that: “ If a party be induced to purchase an article by fraudulent misrepresentations of the seller respecting it, and after discovering the fraud continue to deal with the article as his own he cannot recover back the money from the seller.”
And it has been held that where there is no testi
Under these circumstances equity will not lend its aid, but the plaintiff must rely upon the ordinary modes of redress which the law affords, either by resisting the collection of the notes, or by bringing an action for the recovery of the damages occasioned by the fraud.
Judgment affirmed.