116 Ky. 918 | Ky. Ct. App. | 1903
Opinion op the court by
Reversing.
It appears that appellants, Wayne Hogan and J. P. Gaddie, were the owners of a flour mill, and site, in the town of Wickliffe, Ballard connty, Ky.; that they sold this property to appellees on or about the 8th day of April, 1901, for the sum of $6,800. Appellees, by their contract, agreed to pay $2,300 in cash, or its equivalent, and executed their four notes, of $1,000 each, due in one, two, three and four years. Appellants made and executed a deed to appellees for this property on the terms stated, and delivered same to appellees on the loth day of April, 1901, and agreed to, and did,
Appellants complain of this judgment, and say that they did not deceive, or commit any fraud' upon, appellees, in making the sale of this property to them, but, if they did, the appellees failed to ask for a rescission within a reasonable time after the discovery of the fraud, and that appellees had used the property for 10 or 11 months, had exchanged the engine for another, had changed the situation of the boiler and had made other minor changes in the property; that, before the appellees asked for a rescission, they'(appellants)had sold the land and machinery which they had received in part pay for a much less sum than they had allowed appellees in the trade, to wit, the land at $650, for which they had allowed
We are of the opinion, from the facts as shown by the record, that appellees were deceived in the trade, and that they were and are entitled to relief. It is shown that appellants represented the mill and machinery to be all right in every respect, and as good as new, and that at the time the engine and boiler and other minor parts were damaged and almost worthless. J. P. Gaddie must have known these facts, as he was at the mill and in charge at the time the damage occurred. But it is not made clear that Hogan, the partner, and the other appellant, on whose statement appellees1 alleged they relied, was acquainted with the injured condition of the mill, as he resides in Taylor county, and did not visit the mill often. But in view of all the facts' and circumstances proven, this court would not feel inclined to disturb the finding of the lower court in rescinding the trade on the ground of fraud and deception practiced by appellants, provided the rescission would have placed the parties in statu quo, or nearly so.
The question then to be determined is did appellants elect to rescind within a reasonable time after the discovery of the fraud practiced upon them? If so the judgment should be affirmed; otherwise reversed. In the case of Hoggins v. Becraft, 1 Dana, 31, the court said: “The law has not defined reasonable time.” It can not be defined by any prescribed rule. What is reasonable in one case may be unreasonable in another case. What is reasonable in any case must be ascertained by the application of l’eason to the facts' which characterize the particular case. Delay for one week after full discovery may be unreasonable in some cases. A much longer delay may in other cases be reasonable. The injured party should observe ordinary vigilance and good faith. He
The appellees prove that they discovered the fraud in a few days after May 1, 1901; they kept and used the property; accepted a written promise from appellant Hogan to repair boiler and engine, or furnish new ones; the repairs
The judgment is reversed, and cause remanded for further proceedings consistent with this opinion.