| Vt. | Aug 15, 1864
The exceptions taken to the leave given the plaintiff to file new counts, is not now insisted on.
That part of the defence growing out of the alleged misrepresentation by the plaintiff of the quality of the butter sold, is also disposed of, as no exception was taken to the instructions given the jury upon that branch of the defence.
The remaining questions grow out of the alleged false representations of the plaintiff as to the state of the market for butter in Boston at the time of the trade, and the future prospect of the market.
The court charged' that the plaintiff was not bound to disclose to the defendant his knowledge of the state of the market; that in respect to that, each party must look out for himself.
It is hardly claimed that in this respect the court committed any error, and in respect to the sale of marketable commodities, such has always been understood to be the rule, and seems to have been sanctioned by this court in Paddock v. Strobridge, 29 Vt. The court did charge that if the plaintiff knowingly misrepresented the existing state of the market to the defendant, and that the defendant relied upon his representations, and was thereby deceived to his prejudice,
The main objection made by the defendant to this part of the charge is, that the court did not comply with his request, and charge that such fraudulent misrepresentation entitled him, at his election, to avoid the contract.
But the charge of the court, and their neglect to charge as requested, must be looked at in reference to the state of facts before the court. The principle is undoubted, that where a contract is induced by misrepresentation and fraud, the party who has been defrauded, may, upon discovering the fraud, rescind the contract, and thereby relieve himself from obligation to perform it, although a mere breach of warranty without fraud would not entitle him to do so. But the difficulty in the present case is, that the facts were not such as to entitle the defendant to claim any such charge. The defendant never did rescind the contract, or offer to rescind it, and had before the suit was brought actually disposed of the entire property purchased of the plaintiff and put it wholly out of his power to rescind. In such case, the defendant having put it out of his power to restore to the plaintiff what he has received by virtue of the contract, must rely upon the remedies which the law reserves for him, either by a separate action for the fraud, or by claiming a reduction from the contract price, to the extent to which he has been a sufferer by the fraud.
It has been held in some cases, that although the purchaser may have made some partial change or disposition of the purchased article before discovering the fraud, this would not deprive him of the right to rescind, provided he was able to restore substantially what he received by the purchase, and offered to do so immediately on discovering the fraud. But no case has been brought to our attention, and we know of none, where it has ever been held that where the purchaser had wholly disposed of the purchased property, either for money or anything else, before discovering the fraud, that he could rescind by offering to restore what he had received for it. He has then received the full benefit of the contract, and the avails of
In the present, case the defendant claimed that the loss he suffered on the sale of the butter, between the price he agreed to pay the plaintiff for/ it and what he received in market for it, was all occasioned through the fraud of the plaintiff.
If his evidence established this, then under the charge of the court the jury should have given the defendant a verdict, and the error by which the defendant suffered was not in the court, but in the jury, and is beyond our power to correct.
But the reasonable supposition is, that the evidence did not prove so much as the defendant claimed.
The court also charged that what the plaintiff said to the defendant as to the future prospect of the market for butter was necessarily, and upon its face, but the expression of opinion or judgment, and was hot such a misrepresentation as would entitle the purchaser to avoid the sale, or maintain the action.
If the representation was of the existence of particular facts, in their nature calculated to affect the future state of the market, and were false, and known to be so by the seller, and the purchaser was thereby deceived and defrauded, I should think they amounted to an actionable fraud. But such does not appear to have been the representation of the plaintiff.
It did not appear but that the plaintiff honestly believed all he stated in relation to the prospective improvement of the market for butter, nor was there any evidence but that the plaintiff was advised by butter dealers as he represented to the defendant. Upon the state of evidence presented by the case, we think the court gave the defendant all legal opportunity to make his defence successful, so that he has nothing to complain of which is in our power to remedy.
Judgment affirmed.