158 Mo. App. 662 | Mo. Ct. App. | 1911
(after stating the facts) — We are satisfied that the trial court did not err in giving the demurrer to plaintiff’s evidence, it affirmatively appearing that without any excuse plaintiff delayed making his election to rescind for nearly three months after discovering the details of the alleged fraud.- It is absolutely essential that the party wishing to rescind should do so immediately on discovering the bad faith of the one with whom he has dealt. [Cahn v. Reid and Bungardt, 18 Mo. App. 115, 123; Taylor v. Short, 107 Mo. 384, 393, 17 S. W. 970; Hart v. Handlin, 43 Mo. 171, 175; Lapp v. Ryan, 23 Mo. App. 436, 439; Robinson v. Siple, 129 Mo. 208, 222, 31 S. W. 788; Roark v. Trust, Safe Deposit & Surety Co., 130 Mo. App. 401, 410, 110 S. W. 1; Landon v. Tucker, 130 Mo. App. 704, 710, 107 S. W. 1037.] Of course “immediately” does not mean instanter, regardless of hindering conditions. It may be said to mean a reasonable time considering the conditions. [Althoff v. Transit Co, 204 Mo. 166, 102 S. W. 642,} But a reasonable time to do what? Not to deliberate on whether to rescind, but to do the things necessary in order to rescind. The rule contemplates prompt action, and^ reasonable time means a period in which the rescission could occur allowing only for some particular condition hindering, such as sickness or other adventitious circumstance. The time is given not to determine whether to rescind,
Now it may be conceded that in the exercise of due diligence the party desiring to rescind might take time to consult ■vpith his attorney and have him prepare a notice of rescission, as well as to do whatever else is necessary in the premises, but it is beyond all reason to consume nearly three months in that simple matter. Everything that was done in this case by way of rescission could have been done in a few days at the most. There could not possibly be any room for fair minded men to doubt that nearly three months were not reasonably necessary for the plaintiff to do all that he did do in order to rescind. It may therefore be concluded that the delay which was allowed to elapse was unreasonable as matter of law and that for this reason the trial court properly gave the demurrer to plaintiff’s evidence. [Tower v. Pauly, 51 Mo. App. 75; Steam Heating Co. v. Gas Fixture Co., 60 Mo. App. 148, 154.]
The judgment is confirmed.
