113 Me. 91 | Me. | 1915
This is an action of assumpsit for interest and the first instalment on a note'for $2700 payable $100 per annum, with interest payable annually. The verdict was for the defendant, and the case is here on motion and exceptions by the plaintiff.-
The plaintiff sold a farm to the defendant on May 1,1913, receiving therefor $400 in cash and the above note, and also an agreement to secure him on a part of the crops to insure the first two payments. Before the sale was made, the plaintiff told the defendant that the farm had yielded 38 tons of hay the previous year, and that the income from all sources was $1,000, and offered to show his books to the defendant.
The plea was the general issue, under which the defendant resisted payment upon the ground that the contract had been rescinded. Rescission was based upon two grounds: 1. "That the plaintiff had represented that the farm had produced 38 tons of hay in 1912, and (2) that he had received $1,000 for his products the same year, and defendant claims that these statements on which he relied were untrue, and that he was deceived thereby.
The plaintiff introduced the following notice:
“Skowhegan, Maine, April 11, 1914.
To Lorenzo D. Getchell,
Skowhegan, Maine.
You are hereby notified that I hereby revoke the trade whereby I purchased of you your homestead farm in Skowhegan and Fairfield on the Back R.oad, so called, leading from Skowhegan Village to Waterville and conveyed to me by your deed dated December 7,1912, and tender to you herewith deed of said farm with the personal property which you conveyed to me and will deliver up possession of the same as soon as I can move therefrom, which will be within the next ten days.
I hereby demand from you the return to me of the sum of Four hundred dollars ($400.00) which I have paid you on account of the purchase price of said farm, together with the notes given by me to you for the balance of said purchase price with the mortgage securing said notes, properly discharged.
I rescind said trade and demand of you the return of said money, notes and mortgage because of the false and fraudulent representations which you made to me concerning the quantity of hay which you cut on said farm and the amount of money which you made on said farm the previous year and the deceit which you practiced in making the sale of said farm to me.
Harry A. Kirkby.”
A contract obtained through false and fraudulent representations may be rescinded or affirmed at the election of the party defrauded, and this principle applies to contracts under seal, as well as to other classes of contracts. Deeds procured by covin or fraud as between the parties, are as dead as forged deeds. Jackson v. Somerville, Pa. Sup. Ct., 1850, 13 Law Reporter, 422; Herrin v. Libbey, 36 Maine, 353. The vendee in such case may .abandon the possession without notice. Taylor v. Porter, 25 Am. Dec. 155; but rescission does not follow unless the vendee does abandon possession to the vendor. Duncan v. Jeter, 39 Am. Dec. 342; Meeklin v. Blake, 99 Am. Dec. 68. The law does not allow a partial rescission whereby the party claiming the right to rescind can retain the beneficial part of a contract and refuse performance on his part. Morrow v. Moore, 98 Maine, 373. But the vendee may avail himself of a partial failure of consideration to reduce damages, as in this case, and is not obliged to resort to a separate action for deceit or upon a warranty. Dorr v. Fisher, 1 Cush., 271, and cases cited. Here the defendant did not rely wholly upon want of consideration. His main defense was fraud, and to render that defense available, it was indispensable that he should surrender the property, if he wished to make rescission. He must put the defendant in as good position as he was before; otherwise the rescission is not complete. The purchaser cannot derive any benefit from the purchase and yet rescind the contract. It must be nullified in toto or not at all. Harrington v. Stratton, 22 Pick., 510, and cases cited; Dorr v. Fisher, supra; Pearson v. Carney, 64 Maine, 191.
Motion sustained.
Verdict set aside.
New trial granted.