Tisdale v. Buckmore

33 Me. 461

Opinion

Wells, J.

— The plaintiff was induced to purchase one quarter of the bond, by the fraudulent representations of the defendant, that a third person was entitled to it, and that he would not relinquish his interest for a less sum than one thous- and dollars.

It appears by the testimony, that the plaintiff paid the money for the quarter of the bond, and that the quarter was assigned to him by the defendant, the plaintiff having become by a previous arrangement, the owner of one half of the same bond. The defendant relinquished to the plaintiff his title to one quarter of the bond, but falsely represented that the price paid to him, really belonged to another.

The action, being for money had and received, cannot be maintained, under the facts exhibited, without a recission of the contract. And to effect that purpose, it was incumbent on the plaintiff to have re-assigned to the defendant the quarter of the bond, and what he had obtained by virtue of it, before the commencement of his action. It is a well established principle, that where a party to a contract, obtained by fraud, would rescind it, he must restore whatever he has obtained by it.

The action cannot be maintained upon the evidence introduced by the plaintiff, and the nonsuit was properly ordered.

Nonsuit confirmed.