130 Tenn. 601 | Tenn. | 1914
delivered the opinion of the Court.
The bill in the present case was filed by H. P.’Pear-sons, administrator of the well-known philanthropist, Dr. D. K. Pearsons, to rescind, on the ground of fraud,
Tbe bill alleges, in substance, that Dr. Pearsons, .about July 4, 1906, made tbe donation above mentioned; that before it was made be imposed tbe con■dition that there should be $75,000 bona fide subscriptions to tbe endowment fund of tbe college; that Dr. J. T. Cooter, president of tbe college, acting for it, fraudulently represented to Dr. Pearsons that bona fide subscriptions to tbe amount mentioned bad been procured; that on tbe faith of these representations, the gift was made; that these representations were not true; that in fact subscriptions representing more than $30,000, specified particularly in tbe bill, were bogus or pretended; that Dt\ Pearsons did not discover the fraud which bad been practiced on him until tbe year 1909; that between tbe date of the gift and 1909, that is, in tbe year of 1908, Washington College had been united into one institution with Greeneville Tus-■culum College; that as a result of tbe investigations made by tbe managing officers of Washington & Tus-•eulum College, tbe consolidated concern, Dr. Pearsons bad learned tbe facts as stated; that be was indignant and prepared to bring suit to recover tbe gift, but •decided not to do so because the united college was under a distinct management, though composed of a joint board of trustees selected from the trustees of tbe two institutions; that this board represented that the defendant college was then out of existence; that under the consolidated corporation a new management
The bill further charges that a formal demand had been made upon Washington College for the repayment of the gift, but does not state the date of such demand.
There was an amendment which contained the allegation in round terms:
“No injury has resulted, or can result, to Washington College from the delay in bringing suit to claim .said gift.”
The bill was filed on June 2, 1913.
A demurrer was filed, containing several specifications, but only two grounds were relied on in the argument; that the complainant must be repelled because of the laches of the intestate and of himself, and also because the facts stated show an affirmation of the gift.
In the amendment Dr. Cooter was made a defendant, and a demurrer was filed to this part of the bill, but in
The chancellor sustained the demurrer, dismissed' the bill, and the case is here on the appeal of complainant.
The decree was correct. The rule is that where a rescission is sought for fraud the right must be-promptly asserted, after notice of the fraud has been acquired. Precious Blood Society v. Elsythe, 102 Tenn., 40, 50 S. W., 759; Landreth Co. v. Schevenel, 102 Tenn., 486, 52 S. W., 148; Woodfolk v. Marley, 98 Tenn., 467, 40 S. W., 479; Ruohs v. Bank, 94 Tenn., 57, 73, 28 S. W., 303; Street Railway Co. v. Giardino, 116 Tenn., 368, 92 S. W., 855; Latrobe v. Dietrich, 114 Md., 8, 78 Atl., 983; Angel v. Columbia Canal Co., 69 Wash., 550, 125 Pac. 766; Masson v. Bovert, 1 Denio (N. Y.), 69, 43 Am. Dec., 651. A failure to rescind with reasonable promptitude amounts to affirmance of the-contract. Modern Woodmen of America v. Vincent, 40 Ind. App., 711, 80 N. E., 427, 82 N. E., 475, 14 Ann. Cas., 89. Where the party defrauded discovers the-fraud and remains silent under circumstances indicating acquiescence, or where he acts in relation to the subject-matter of the' contract in such a way as to imply a willingness to stand by it, he ratifies it and cannot subsequently avoid it. Latrobe v. Dietrich, supra. Any conscious recognition of the contract as binding with knowledge of the fraud bars the right to-rescission. Kennedy v. Bender (Tex. Civ. App.), 140 S. W., 491; same case in supreme court on certified
Every case turns largely upon its own facts. ■
In the case before us Dr. Pearsons acquired knowledge of the fraud in 1909, but the suit was not brought until 1913, a delay of four years. This was too long; (Moreover, the facts recited to excuse this delay not only fail to excuse it, but show an affirmance of the gift. These facts are that Dr. Pearsons was induced to allow the gift to remain uncanceled at the solicita
As to so much of the amended hill as alleges, that Washington College was not injured by the delay to bring suit, this cannot he considered, being a mere conclusion, without stating the particular facts on which the court could pass judgment; moreover, we do not understand that where a rescission is sought for fraud, such a consideration intervenes.
The result is that the decree of the chancellor must be affirmed.