Estes v. Reynolds

75 Mo. 563

• Court: Supreme Court of Missouri
• Decided: April 15, 1882
• Status: Published

Opinion

Sherwood, C. J.

It is fatal to plaintiff’s ease, that on discovering the alleged fraud and deceit upon which he bases his action, he did not promptly rescind, or offer to rescind the contract, and return or offer to return the property he acquired by reason thereof. And such rescission must be in toto. A party cannot affirm a contract in part, and repudiate'it in part. He cannot accept its benefits on the one hand, while he shirks its disadvantages on the other. He cannot play fast and loose in.the matter. Nor is he permitted to select his own time, consult his own convenience and watch the rise and fall of the market, before exercising the right of rescission. If he elects to dis-affirm the contract in consequence of deception practiced upon him, such election in order to avail him must have the chief and essential element of promptitude, and he must put the other party in the same situation as he was before the contract was made. # All the authorities speak this language. Jarrett v. Morton, 44 Mo. 275; Hart v. Handlin, 43 Mo. 171, and cases cited. The facts of this case bring it fully within the principles here announced, and as the case was tried in conformity thereto, we affirm the ■judgment.

All concur.