Springer v. Keller

259 P. 1068 | Kan. | 1927

The opinion of the court was delivered by

Dawson, J.:

In a motion for a rehearing appellant complains that his defense of fraud was insufficiently treated in our opinion. That defense was unavailing because he did not take timely steps to repudiate the alleged fraudulent transaction. He acquired the over-valued Wyoming lands and a mortgage on Nebraska property in one transaction, one bargain. He did not rescind that bargain. He ratified it, in part at least, by foreclosing the mortgage on the Nebraska property. Having bought in that property at the foreclosure sale, it was quite within his power to restore or offer to restore all he acquired in the alleged fraudulent transaction. But he made no tender of any sort. This situation would have defeated him even if the litigation had been between the original parties, appellant and Thomas C. Howe. He could not be heard to complain of one part of the bargain, nor permitted to repudiate it while he hung on to another part which was to his advantage.

This principle runs through all the cases where obligors have sought to be excused from performing their contracts when induced thereto by fraud. (Bell v. Keepers, 39 Kan. 105, 17 Pac. 785; Sylvester v. Lynde, 113 Kan. 450, 454, 215 Pac. 305; Beneke v. Bankers Mortgage Co., 119 Kan. 105, 237 Pac. 932; Cleaves v. Thompson, 122 Kan. 43, 251 Pac. 429; Rucker v. Rafter, 122 Kan. 91, 251 Pac. 420; 39 Cyc. 1424 et seq.)

The rehearing is denied.