38 Ky. 101 | Ky. Ct. App. | 1839
delivered the Opinion of the Court.
Duncan sold to Baird & Co. a lot of ground, and received a gold watch and chain, at the price of two hundred and ten dollars and twenty five cents, in payment
It does not appear whether there was any written memorial of the contract. But this was an immaterial fact; for even if the contract was merely verbal, it was not therefore void; and if Duncan offered to comply with it, Baird & Co. could not maintain any action for the recovery of the consideration which he had received from them, unless he either renounced the contract, or had been unable to fulfill it on his part.
And if his sale and conveyance to a stranger, after they had refused to abide the contract, should be deemed such a renunciation of it, or such a disability to fulfill it, as would entitle them to any action, this record exhibits no fact tending to prove an express promise to pay $210 25 — or authorizing the deduction that there was an implied promise to pay even any thing for the watch.
If the contract was rescinded, either in fact or in judgment of law, nothing else appearing, the title to the watch and chain was ipso facto revested in Baird & Co.; and the only promise by Duncan which the law would imply from the simple fact of rescission, would be a promise of specific restitution.
If therefore, upon the facts proved, the appellees be entitled to any legal remedy, it can only be one for the watch itself or for the conversion of it. Talbot vs. Dailey, 3 Bibb, 444; Lewis vs. Whitnell, 5 Monroe, 191; Dougherty’s Administrator vs. Goggin, 1 J. J. Marsh, 374-5.
Wherefore, the judgment is reversed, the verdict set aside, and the cause remanded for a new trial.
