11 How. Pr. 526 | N.Y. Sup. Ct. | 1855
The object of this suit is to rescind two contracts—one made on the 30th of April, and the other on the 23d of August, 1844—on the alleged ground of “ fraud ” and want of “proper and adequate consideration.”
The charge of fraud is fully denied, and the attempt to prove it has entirely failed.
As to the question of sufficient' consideration, it may be observed, that the transaction, on its face, was a speculative one; holding forth, if successful, great hopes of profit, and attended,
These contracts, it "will be remembered, were entered into more than ten years before the trial, and more than six years before the commencement of the plaintiff’s suit, and the notes given under the one made with the defendant, Clark, have been actually paid: as to that, at least, the plaintiff should have taken his stand when, if not before, the notes fell due. His knowledge was then sufficient, and he had then had ample opportunity to understand his rights. He made the payment with his will free and his eyes open. A voluntary payment, deliberately and understandingly made, without fraud or duress, cannot be recovered back—and ought not to be—by action either at law or in equity.
On this point the law, and for obvious reasons, is well settled. And it is equally well settled, as a sound rule of equity jurisprudence, that a party asking for the recision of a contract deliberately entered into, must make his election with all due promptness. He must take his stand at once, and at the time. Neither law nor equity permits him to alternate, and see-saw from one side of the fence to the other, speculating upon con
One of these contracts—that with the defendant Selden, for the other half of the invention—it is said, is in express terms conditional. It provides, that if the application for a patent should fail, or if the Tatham suit (claiming a prior invention) should be <e finally determined against the defendant therein,” then the bargain should be void.
Now, either these conditions have been fulfilled, or they have not. If they have been, the plaintiff has no ground of complaint in any form : if they have not, he has a perfect remedy, without a new suit, by way of defence, in the action already pending against him; and the present litigation is, therefore,, in either view, unfounded, or it is unnecessary and vexatious. (See the case of Selden, agt. Pringle, 17 Barb. 458.)
Bill dismissed with costs as to all the defendants.