208 Pa. 473 | Pa. | 1904
Opinion by
The plaintiff in this case sought to repudiate a contract, upon the ground that when he made it, he was so completely intoxicated as not to know or understand what he was doing.
Upon the trial the learned judge of the court of common pleas charged the jury that in order to avoid the contract, the plaintiff must prove not only the fact of intoxication, but in addition must show one of three things :
First, that the contract was procured by fraud or undue influence.
Second, that the defendant knew, or should have known by something appearing in the transaction, of the plaintiff’s condition at the time, or
Third, that the transaction was manifestly unfair or oppress sive.
In the present case the court was therefore in error in its instruction to the jury with regard to the effect of the intoxication of the plaintiff upon the validity of the contract. But in order to recover, it was incumbent upon the plaintiff to prove not only that he was incapacitated by intoxication, when the contract was made which he now seeks to repudiate, but he must go further and show that he rescinded the agreement within a reasonable time after his recovery. The rule with regard to rescission is thus stated in 21 Am. & Eng. Ency of Law, 84: “ Where a contract is sought to be rescinded by one of the parties thereto, he must place the other in statu quo. He will not be allowed to repudiate a contract and retain the benefit derived thereunder against equity and good conscience, but must return, or offer to return, such benefit.”
There is also a thorough discussion of the question by Judge Sharswood in Beetem v. Burkholder, 69 Pa. 249, which he begins by saying that, “ Whenever one of the parties to a contract has the right to rescind it, and elects to do so, before commencing his action to recover back the money which he has paid, he must give notice to the vendor and offer to return the thing sold.”
In the present case the consideration received by the plaintiff was a release in full for himself and his partner from the obligations of a prior contract under which he was liable to incur serious losses. We have examined the testimony carefully and have not found anything to indicate any offer by the plaintiff to restore the consideration which he had received for the contract which he now attempts to repudiate, or that he attempted or offered in any way to restore the status quo.
His own account of his action in this respect is given in his
Acting upon the new agreement, which was made in perfect good faith, the defendant company upon their part annulled the former contract and released the plaintiff and his partner from all liability thereunder, and surrendered the bond of indemnity.
In order to place the defendant company in statu quo, it would have been necessary for the plaintiff, before beginning this action, not only to have shown a bona fide willingness to complete the original undertaking and carry out that contract in accordance with its terms and conditions, but it was necessary also to obtain the assent and agreement of his partner thereto; it would have been his duty also to have reinstated or restored the bond of indemnity given to the defendant, company to secure the faithful performance of the work.
As the testimony does not show that the plaintiff did any of these things, the assignments of error must be dismissed and the judgment is affirmed.