19 Vt. 505 | Vt. | 1847
The opinion of the court was delivered by
This is assumpsit on two notes payable in specific articles. The general issue was pleaded, and also a plea in offset, and issue was joined to the country.
It appears by the exceptions, that the consideration of the notes was the sale to the defendant of a mare and a clock. In addition
On the principles of the case of West v. Moore, 14 Vt. 447, it is obvious, that the offset cannot be sustained. In that case the action was brought in form ex delicto, and yet, being founded upon a contract, the court held that it was governed by the same principles, as if it had been assumpsit. Here it is assumpsit; had it been otherwise, this matter could not have been pleaded as an offset.
In analogy to the case of Bigelow v. Kinney, 3 Vt. 353, I think the whole contract must stand or fall together. It was competent for the plaintiff, when he came of age, to have disaffirmed the whole bargain, returning the harness and the two notes to the defendant and demanding the mare. Instead of doing so, he has, by bringing this suit, chosen to affirm it, in all respects, except that he wishes to extricate himself from that portion of it, which binds him to the observance of good faith and common honesty in the fulfilment of it. To permit him to do this would, instead of affording a salutary and necessary protection to infants from their contracts generally, enable them to use this privilege for the perpetration of frauds upon others. This would be manifest injustice. On this ground I am of opinion, that, by thus affirming the contract on his part, he is estopped from setting up infancy as a defence to that portion of the contract obligatory upon him. To adopt the language of PnnNTrss, J., in the case above cited, “Nothing is clearer, than ' that á party cannot affirm an entire contract in part and avoid it in part.” However, the court have chiefly regarded the present case under another aspect, — that is, under the plea of the general issue. It is well settled, that, upon an entire want of consideration, or failure of consideration, the contract may be avoided. If the consideration for the notes had not included a clock, as well as the mare,
The sale of the horse and clock on one side for the harness and notes on the other constituted an entire contract; and a failure of value as to one of the articles would not necessarily render the whole contract without consideration, and for that reason avoidable. It is possible, that an inquiry as to the value of the clock might be gone into before the jury, and the damages Be reduced pro tanto. The authorities on this point are conflicting, and we give no opinion respecting it.
We think,'however, that the failure of consideration here was to such an extent, as to authorize the defendant to rescind the contract altogether. This he offered to do, in a reasonable time. Even if he had the right to recoupe the damages, or have them cut down to the value of the clock, still the purchase of the horse may have constituted the main inducement to the bargain, without which it would not have been entered into; and on that ground he ought to be allowed, at his own option, to treat it entirely as invalid. This is a doctrine in accordance with equity and justice, and sanctioned at law, as well as in equity, by the best authorities. Chancellor Kent says, [2 Kent'470,] “If a title to a part of the chattels sold had totally failed, so as to defeat the object of the purchase, as if A. should sell B. a pair of horses for carriage use, and the title to one of them should fail, it is evident, from analogous cases, that the whole purchase might be held void, even in a court of law.” A
On the whole, the judgment of the county court is affirmed.
Adams v. Gay, ante, page 358.