23 Me. 35 | Me. | 1843
The opinion of the Court, Teníney J. taking no part in the decision, having once been of counsel in the case, was drawn up by
This is an action for money had and received, commenced by the plaintiff to recover of the defendant a sum of money, which he had paid the defendant on a contract for the purchase of a tract of timber land. The claim is grounded upon a supposed fraud, alleged to have been prac-tised by one Dolbier, with whom the defendant is alleged to have been in partnership. To maintain this action the contract must be deemed to have been rescinded. A period of nearly five years had elapsed, after the alleged fraud, before this action was commenced ; and it does not appear that any notice had previously been given of an intention to rescind it. If a party would rescind a contract, on the ground of fraud, the rule is, that it should be done within a reasonable time thereafter. What would be a reasonable time is a mixed question of law and fact. When the facts are ascertained, it becomes a question of law. Those facts, in a case like the present, must be somewhat difficult to ascertain, and of course must be referred to a jury, under the instruction of the Court. No evidence to this point appears to have been introduced. Of course no foundation was laid to authorize the plaintiff to proceed on the ground of fraud, in an action for money had and received.
Judgment on the nonsuit.