166 Ark. 377 | Ark. | 1924
(after stating the facts). If it be conceded that the representations made by Braden as to the park and the hard road should .be considered as sufficient to entitle Pylant to have the contract for the purchase of the lot rescinded, and that the preponderance of the evi-c dence establishes the falsity- of the representations, still Pylant is not entitled t-o rescind the contract, because he did not promptly avail himself of this right as soon as it was discovered. He could not wait to experiment and see whether the transaction mig*ht not, after all, turn out well. Pylant purchased the property at the auction sale on the 27-th day -of January, 1920. He admitted that he found out that the park was abandoned, and that the street was not to be paved, during the latter part of the summer of 1920. He continued to hold the property until the present suit was commenced on the 14th day of December, 1922. Indeed, he did not file his answer setting up this defense until January 15, 1923. During all of this time he was silent and continued to treat the property as his own. Under the circumstances he will be held to have waived the objection, and will be conclusively bound by the contract as if the alleged fraud had not occurred. He cannot play fast and loose with reg’ard to the matter. Fitzhugh v. Davis, 46 Ark. 337, and Fleming v. Harris, 142 Ark. 553.
It is true that Pylant offered to rescind the contract and to give Braden a mule if he would permit him to do so. Braden refused this offer, however, and at no time did Pylant rescind the contract on the ground that it had been procured by the false representations of Braden with regard to the park and hard road.
It follows that the decree must be affirmed.