148 Iowa 306 | Iowa | 1910
The parties hereto exchanged stallions about Eebruary 20, 1906, that of plaintiff being a Goldenberry coach, named “General;” the defendant’s, a pereheron, known as “Bedford.” They traded even, but subsequently plaintiff rued his bargain and brought this action to recover the possession of “General.” After the introduction of the evidence, the jury was directed to return a verdict for the defendant, >and the main question for our consideration is whether this was warranted by the record. The plaintiff alleged in the petition that he was induced to make the trade by defendant fraudulently representing that he was the owner of the stallion “Bedford” when he was not; that said stallion was sound when he was blind; that he
Other evidence tended to show that “Bedford” was nearly or quite blind, and that this was known to defendant, and that with intent to deceive he represented otherwise and thereby induced plaintiff to exchange “General,” of the agreed value of $1,250, even up for “Bedford,” a horse the jury might have found unfit for breeding purposes and not worth to exceed $100. Indeed, this was the price defendant claims to have paid one Ayres for the animal shortly before. The plaintiff did not discover the condition of “Bedford” until March 19, 1906, when one Philpott demanded the horse, claiming to have purchased it of Ayres at the price of $100, and that it was blind. The two met defendant the next day and according to plaintiff’s testimony he then told defendant that he wanted the coach horse back and would return the percheron, to which defendant replied: “I have nothing to do with that horse; he was my horse when I traded to you and he is your horse now, and Mr. Philpott has nothing to do with him, has no right to get him. You can’t bring that horse back to my place. I don’t want him. I traded him to you and he is your horse and you keep him. I forbid
The jury, then, might have found any tender essential to a rescission was waived in the conversation of March 20th, and that the written tender was sufficient, provided the situation was such that had there been an acceptance the plaintiff could have delivered him the horse. But two obstacles are said to have been in the way, a chattel mortgage on the horse and the replevin proceedings. After the trade plaintiff had executed a mortgage on the stallion “Bedford” to secure the payment of $530.94 to W. C. Hess. Before seeing defendant in the morning of March 20th, plaintiff arranged with Hess to satisfy this mortgage and accept other security in lieu thereof. This arrangement, however, was not carried out until April 6th following, when a satisfaction piece was executed and this action for the recovery of “General” instituted on the same
i. Exchange of property: replevin: tenderion: Had the suit been in equity, a tende'r of the return of the property in the petition would have been timely, and the commencement of the action for the possession of the stallion exchanged a sufficiently definite . disaffirmance of the contract and the election to rescincL McCorkell v. Karhoff, 90 Iowa, 545; Olson v. Brison, 129 Iowa, 604. But in a law action the plaintiff’s right of recovery must have been perfect when begun. The chattel mortgage had then been satisfied. Though Philpott had the horse “Bedford” in his possession, a judgment in the justice court had declared plaintiff entitled thereto and for all that appears he might have enforced this judgment by process at any time. The plaintiff then was in a situation to restore the property received when the action was begun, or at any time thereafter until the stallion died. That defendant was advised of plaintiff’s election to rescind conclusively appears, but it is argued that the tender of the return of the property was ineffective in that (1) it was incumbered; (2) was involved in the replevin suit in the justice court; and (3) there was not an actual tender.
In Olson v. Brison, 129 Iowa, 604, an admission in the course of, the trial that the property would not have been taken had it been brought back was held enough to obviate the necessity of a tender having been made. Much of the argument of counsel is devoted directly to the question of whether a party, who has fraudulently procured the execution of a contract, is entitled to an offer of restoration as a condition precedent to rescission. That a tender is unnecessary where the party undertaking to rescind is entitled to retain the money or property received, even though the contract be set aside, appears from Howard v. McMillen, 101 Iowa, 453, and Dillon v. Lee, 110 Iowa, 156. See O’Brien v. Railway, 89 Iowa, 644.
Other questions argued are not likely to arise on another trial. Reversed.