76 N.J. Eq. 511 | New York Court of Chancery | 1909
The bill in this case is filed to procure a decree rescinding a contract alleged to have been made between the defendant, Winter, and two persons as partners, one of whom is dead, the complainant being the survivor. The contract related to the purchase and sale of personal property and a lease. At the time of the filing of the bill, a motion was made for a preliminary injunction to restrain an action at law arising out of the contract relation. This motion was denied upon the ground that the supreme court had practically decided that the action was properly brought. A demurrer is now interposed to the bill upon the ground principally that the cause of action set out therein is one which is cognizable in the courts of common law.
The bill sets out a cause of action which would undoubtedly be triable in the common law courts in an action for deceit. It
There is, however, a limitation upon this doctrine which is found in the case of Krueger v. Armitage, 58 N. J. Eq. (13 Dick.) 357, and in Polhemus v. Holland Trust Co., 59 N. J. Eq. (l4 Dick.) 93; affirmed, 61 N. J. Eq. (16 Dick.) 654. In Krueger v. Armiiage the complainant filed his bill to recover damages accruing out of what was claimed to be a fraudulent sale of stock. There does not appear to have been any prayer for the rescission of the contract, which possibly differentiates the case from the one in hand. The report shows that it was merely a bill for damages based upon a false representation of fact, there being no equitable remedy appealed to except the recovery of damages. Vice-Chancellor Emery held that in that
In these two cases it will be observed that there was no ground of equity jurisdiction except the false representation of fact. But in the- case in hand the complainant appeals to the court to declare that the contract induced by fraudulent representations should be rescinded and canceled, and this upon the ground that the contract being void by reason of fraud, the complainant should not continue to rest under the obligation of any portion of it, but that he should be discharged from its performance in whole and in part. This is an equity to which the complainant is entitled if at the final hearing he is able to substantiate his allegations.
I do not now pass upon the question of the manner in which the damages shall be ascertained and measured in case the complainant shall succeed in establishing his right. This may be very properly left to the final hearing, and it may there turn out that damages, if any, are of very easy ascertainment. An examination of the bill discloses that there is no specific prayer for the cancellation of the chattel mortgage which was given by the complainant and his partner to the defendant. If the mortgage covers property which is by the bill tendered to the defendant on the rescission, it probably can make little or no difference whether the mortgage is specifically canceled or not, unless it contains some obligation which the complainant in ease of his success would desire to be relieved from.