259 F. 83 | 6th Cir. | 1919
When this equity case, which was at issue in the court below upon full pleadings, came on for trial in open court at the time fixed, Mrs. Lindley,-the plaintiff, was not ready, and asked a continuance. The court denied this request. Plaintiff then asked leave to dismiss the bill without prejudice. This request was also denied, and an order was entered dismissing the bill absolutely and without qualification. The plaintiff appeals, and complains both of the refusal to give a continuance, and of the final order.
The bill alleged that Mrs. Bindley, as heir of her mother, was entitled to a one-ninth share in her mother’s estate; that her brother and sister, the other heirs, made a settlement with her and paid her a sum of money in full satisfaction for her share in the estate; that
If we were considering the first bill, it would be clear enough that a tender of the consideration back was not a necessary preliminary. It would appear that plaintiff was entitled to what she had received, and there would be no reason for requiring that she should tender anything back. The suit in equity is for a rescission, not as upon a rescission; and the court can, in its final decree, properly marshal and dispose of any equities that might exist in that connection. Gould v. Cayuga Bank, 86 N. Y. 75; Thomas v. Beals, 154 Mass. 51, 27 N. E. 1004. We are not sure that this rule reaches the second settlement. As to that, defendants deny that she was entitled to anything. They say they paid her $15,000 for peace. It seems that the defendants might have been entitled to require a tender of this $15,-000, with the bill at the latest, so that they might, if they wished, accept the tendered rescission of the second settlement contract, and so that both parties would fall back upon the position which they occupied when the first bill was filed; but defendants have cut themselves off from any substantial right to the benefit of this principle. In their answers in this present case, they have relied upon the second settlement as valid in all particulars, and they expressly insist that this second settlement should not be rescinded but should stand in full force and effect. It is therefore plain that if a tender had been made, they would have refused it; and the court surely cannot refuse to hear the plaintiff because she has failed to do a confessedly vain and useless thing.
Our direction will therefore be that the order of dismissal be vacated and set aside, and that plaintiff’s motion for leave to dismiss without prejudice stand for hearing in due course and be granted, unless the trial court shall, in its discretion, think proper to delay' the hearing and disposition thereof until defendants have opportunity to claim cross-relief.
The appellant will recover the costs of this appeal.