46 Conn. 393 | Conn. | 1878
It is found in this case that one Brennan purchased the goods in question of the plaintiff by fraud. The plaintiff discovered the fraud a few days after, and immediately commenced an action of assumpsit against Brennan for the value of the goods, and attached the property which had been sold to secure the claim. The action was brought to the City Court of Bridgeport, to be held on the first Tuesday of September, 1877. Soon after the bringing of the plaintiff’s suit the defendants, Morgan & Hopson, brought a suit against Brennan, and attached the same property. At the September term of the City Court the defend
The question in the case is, whether the plaintiff had the right, as against these defendants, to rescind the sale he had made of the goods to Brennan, as late as the month of February, 1878, when he made his demand for the goods upon the defendants. The plaintiff had full knowledge of the fraud which had been practiced upon him in the sale of the goods as early as the 24tli day of August, 1877. The claim is that he lost his right of rescission as against the defendants by unnecessary and unreasonable delay.
When the plaintiff became apprised of the fraud, he had the right to rescind the contract of sale if he was so disposed and repossess himself of the goods, but, as against third-parties, it was his duty to do so, if at all, without any unnecessary delay. 2 Parsons on Contracts, 780; Chitty on Contracts, 408, 680; 2 Addison on Contracts, 250; Selway v. Fogg, 5 Mees. & Wels., 74; Masson v. Bovet, 1 Denio, 69; 1 Smith’s Leading Cases, 355.
There was not only this long and seemingly wholly unnecessary delay in rescinding the contract, which would seem of itself sufficient to deprive the plaintiff of the right of rescission as against the defendants, but the plaintiff affirmed the
But the plaintiff, having affirmed the contract with full knowledge of all the facts, could not afterwards rescind it. He was bound by his affirmation. Benjamin on Sales, 342; 2 Parsons on Contracts, 781, note; Ferguson v. Carrington, 9 Barn. & Cress., 59; Kimball v. Cunningham, 4 Mass., 502; Butler v. Hildreth, 5 Met., 52; 1 Smith’s Lead. Cases, 355.
There is no error in the judgment complained of.
In this opinion the other judges concurred.