Manahan v. Noyes

| N.H. | Dec 15, 1872

Foster, J.

We infer from the case sent up that the plaintiff purchased the property, relying upon the “ material misrepresentations” contained in the newspaper, and not upon her own personal examination. The case finds, as we understand it, that the plaintiff was a resident of Massachusetts,- that she saw the advertisement there, that she negotiated with the plaintiff’s agent there for property situated in Chester in this State, and that she came to Chester “upon a Monday morning, to complete those transactions ” concerning which, as to the price and mode of payment, the terms had been settled elsewhere, — being, for the first time, informed of the fraud while moving in her goods. It does not appear, as suggested by the defendant’s counsel in their brief, that “ she went to Chester before purchasing, was told what the farm was, examined it for herself, and saw fit upon her own judgment” to purchase; nor can any inference be drawn, as suggested, that she was induced by the advertisement to go and examine the farm, and that she bought it after she had examined it, and knew (or had such information as would put a person of ordinary capacity on inquiry) that the advertisement was untrue.

The discrepancy in the views of counsel is material, and the referee may be called upon to supply any matter of fact not disclosed which counsel may require. But in the aspect of the case as we must at present regard it, the only question seems to be whether the plaintiff, being deceived by the false representations of Mrs. Haseltine or her agent, undertook within a reasonable time to rescind the contract, and brought herself within the well settled rules applicable to such a case.

Contracts entered into on fraudulent representations are voidable at the election of the party defrauded, as well in regard to real as personal estate. Concord Bank v. Gregg, 14 N. H. 331. It is sufficient, to bring the plaintiff within the rule as to rescission, that she should offer to return the property in a reasonable time, provided, by such return or offer to return it, the vendor is placed substantially in statu-quo. Concord Bank v. Gregg, before cited.

The plaintiff had scarcely taken possession when she was first informed of the fraud. Her goods were then being removed to the place. She had a right to take and retain the possession for a time reasonably sufficient to enable her to make inquiry; and having done so, she might then return the property.

Whether the time from Monday till Thursday, when she notified Mrs. Haseltine that she should not keep the farm, was such reasonable time, is a question of fact for the referee, and not a question of law for this court. Apparently, the vendor had lost no substantial advantage, and the- vendee had evidently acquired no substantial profit from her temporary possession. Whether the plaintiff had done all that could reasonably be required in the circumstances, was a question for the referee. If she had done so, this action is not misconceived. Concord Bank v. Gregg, before cited.

The principle is almost elementary that assumpsit for money had and received will lie where a contract is rescinded, to recover the money paid under it. It certainly is not for Mrs. Haseltine or her husband to complain that the plaintiff, instead of seeking to obtain damages for the deceit, seeks only to recover the money which the defendant, in equity and good conscience, ought not to retain.

The objection that the five hundred dollar bill, having been paid to Haseltine and then passed to the defendant to be changed, became thereby absolutely the money of Haseltine in the hands of the defendant, as his agent, and so capable of being reached, if at all, only by trustee process, is purely technical and quite unavailable.

It appears from the case that the bill was passed to Haseltine, not as the money of Haseltine or his wife, but only for the purpose of taking three hundred dollars out of it. This Haseltine could not do, and there was the end of that matter. The bill was then given to the defendant ; no matter whether by Haseltine or by the plaintiff, — it was the plaintiff’s bill; and if Haseltine gave it to the defendant, lie transferred the possession as the plaintiff’s agent for that purpose. It was given to the defendant in order that he might change it, and pay three hundred dollars to Haseltine and the remainder to the plaintiff. It was the plaintiff’s money — all of it — in the defendant’s hands, until, as the agent of the plaintiff, he should pay three hundred dollars to Haseltine. Not having paid it, and the contract upon which the payment depended having been rescinded, it remains the money of the plaintiff, in the defendant’s hands, which, ex aequo et bono, he has no right to retain.

The defendant’s position is not unlike that of a stake-holder of a legal wager, at common law, which position Lord Ellenborough likened to that of an arbitrator, saying, — “ Now an arbitrator’s authority, before he has made his award, is clearly countermandable; and here, before there has been a decision, the party has countermanded the authority of the stake-holder.” Eltham v. Kingsman, 1 B. & Ald. 683.

Here was this defendant, a sort of stake-holder or arbitrator, at any rate a middle-man, entrusted by the owner of five hundred dollars with authority to pay three hundred thereof to Haseltine ; but before payment, the authority of the defendant was countermanded.

"With these suggestions, the report of the referee must be recommitted for his action, in view of this declaration of the law.