58 N.H. 45 | N.H. | 1876
The plaintiff, electing to treat the fraudulent exchange as void, and the defendant's possession of his property as tortious, could maintain trover, without a demand and refusal. Thurston v. Blanchard, 22 Pick. 18; Stevens v. Austin, 1 Met. 557; Thayer v. Turner, 8 Met. 550, 552; Bussing v. Rice, 2 Cush. 48; Farley v. Lincoln,
The defeasible title, received by the plaintiff from the defendant, having entirely failed, and the horse having been taken from the plaintiff, he could rescind the exchange without buying the horse and returning it to the defendant. When he bought the horse, he obtained a title which he was not bound to transfer to the defendant, because he did not receive it from him. Stevens v. Austin, 1 Met. 1 557; Manning v. Albee, 11 Allen 520. In Wiggin v. Foss,
It is said that a defrauded party cannot rescind his contract while he retains any part of the consideration or benefit which he has received (Sanborn v. Osgood,
The fraudulent and voidable exchange being rescinded, the plaintiff *47
was entitled to recover the value of the wagon and receipted account, which did not become the property of the defendant by the rescinded contract. The value of the wagon and account is the measure of damages. The rule of Felton v. Fuller,
New trial of the question of damages.
STANLEY and BINGHAM, JJ., did not sit.