34 F. 620 | U.S. Circuit Court for the District of Indiana | 1888
(after stating the fads as above.) The general rule is well established that one who would disaffirm a contract must do so totally, and therefore must return whatever lie had received upon it. But at the .same time he is entitled to reclaim whatever he had parted with, and consequently his tender or offer to return need not be absolute, but upon condition, either express or implied, that he shall receive back his own,
“Even in such cases (for rescission) a third party, whose title depends upon a contract claimed to have been rescinded, cannot set up a want of tender by the plaintiff to the original party of the return of what the plaintiff had received under the original contract-.. For instance, when a sale of goods is rescinded by the vendor on the ground of fraud, and he reclaims the goods from a transferee of his vendee, the transferee cannot defend on the ground that the securities received by the vendor from the original vendee have not been tendered back to him. Kinney v. Kiernan, 49 N. Y. 165, 172. In such a case the title to the securities reverts to the original vendee on the rescission, but the right to insist upon their return is his, and not that of his transferee of the goods. Stevens v. Austin, 1 Metc. 558; Pearse v Pettis, 47 Barb. 276. ”
The question here, however, is not whether a tender was necessary, but, one having been made and kept good by the bringing of the money into court, what shall be done with the money? The proposition that “Trentman acquired Miller’s rights,” or “stands in Miller’s shoes,” in respect to the property in question, is manifestly not true in fact, because, of the goods sold by the plaintiff, Miller had disposed of two-fifths before the transfer to Trentman; and, besides, the evidence does not showwhether the terms of the transfer were such, between themselves, as to give Trent-man any claim to stand in the place of Miller; and if the point 'were conceded, yet Trentman, not standing in the position of an innocent purchaser of the goods as against the plaintiff, cannot through Miller assert any right which Miller could not; and with the proceeds of plaintiff’s goods in his possession to the value of $900, not paid for except