Harrington v. Lee

33 Vt. 249 | Vt. | 1860

Barrett, J.

The note in suit was given by the defendant upon the purchase of a printing establishment at an agreed price.

It is claimed in defence, that, by the terms of the trade, the defendant was to have the property for its costs, twenty per cent, off; that the plaintiff represented that, upon those terms, the price would amount to more than eight hundred dollars, (that sum being the price agreed upon, and for which the note was given ;) that in fact the property cost much less than the plaintiff represented ; and that the defendant is entitled to show the true cost of the property, and have a corresponding deduction made in assessing the damages upon the note.

In order to dispose of the case upon the ground assumed by the defendant’s counsel in the argument, it will not be necessary to review the decisions, or pursue a wide range of discussion.

He declines to claim that the plaintiff practiced any fraud upon the defendant, in negotiating the trade, and not only declines to claim any repudiation or rescisión of the trade, but he insists on regarding it as good, and on holding the property under the purchase.

It seems to be settled by the decided cases, that three things must concur in order to entitle the defendant, in a suit like this, to have an abatement from the sum for which the note was given, in assessing damages, viz : fraud upon the defendant in procuring the note for the sum named, an offer by the defendant to rescind, and ability by computation to fix the amount to be deducted.

This is established by a course of decisions in this State, commencing with Walker v. Smith et. al., 2 Vt., 539. The English cases are to the same effect, as are those also of most of the American States.

It is clear that the case, upon the ground assumed for the defence, lacks two of the requisite elements, viz: fraud, and an offer to rescind; and this renders it unimportant to determine whether the diminution claimed could be ascertained by certain computation.

But there is a view in which the case stands on unquestionable ground. The defendant insists upon holding the property under the purchase, in consummation of which the note in suit was given. This operates as an affirmance of the contract in all its particulars, as well its final consummation as its preliminaries and terms, and disentitles the defendant to question either the validity or the amount of the note.

The judgment of the county court is affirmed.