52 Ky. 172 | Ky. Ct. App. | 1852
delivered the opinion of the court,
Without expressing any opinion upon the question of fraud involved in this case, we are of opinion that the complainants were not entitled to a decree rescinding their purchase of the jack, and were therefore entitled to no relief on their bill. If there was a fraud, as alleged, in the sale of the jack to them, and if they tendered back the animal in due time, as alleged, and if they might thus have rescinded their purchase and entitled themselves to a restoration of the notes executed for the purchase money, notwithstanding Scott’s refusal to rescind, still, as they took the jack home after the refusal, and used him as their own and put him to a number of mares, and did pot merely take care of him, it seems to us that they waived or lost the benefit of their tender, and made the jack their own, with the right only of suing for such damages as they may have sustained by the fraud, if one was practiced on them in the sale.
If when the tender was made the complainants had a right to rescind the contract for fraud, they might, notwithstanding the refusal of Scott to rescind, have left the j ack in his stable where they had placed him, and have stood upon their right of rescission, or they might, notwithstanding their tender, have re-taken or retained the jack.' Their tender, if they had a right then to rescind at their option, was, though refused, a rescission, if they chose to consider it so. They, how
We think a purchaser is not allowed thus to speculate on events, by silently or even openly reserving the right, at his own option, of considering the contract as rescinded or not rescinded by his tender. In the present case, it does not appear that, from the tiiqe of Scott’s refusal, up to the commencement of
Upon the whole, therefore, we are of opinion that they cannot rely upon their tender as a rescission of their purchase, but that if defrauded, as they allege, they can only recover damages for the fraud. And as, according to the well settled doctrine upon the subject, the court of equity will only interpose in such cases to effectuate a rescission of the contract, and entertain a bill for the recovery of damages when there has been no rescission, or nothing entitling the purchaser to it, but will leave him to his legal which is not only adequate but peculiarly appropriate, it follows that the bill should have been -idi$missied, not absolutely, but without px-ejudice. As the.ná'urt could not have given relief, if satisfied that fraud had been committed as alleged, it should not have undertaken to decide absolutely that there was no fraud, and by an absolute dismissal of the bill have defeated or at least obstructed the resox’t to the appropriate forum. Wherefore, the decree dismissing the bill absojutely is reversed, and the cause is remanded, with directions to dismiss the bill without prejudice to the remedy at law.