Van Denburg v. Scott

78 Misc. 281, 138 N.Y.S. 149

• Court: New York Supreme Court
• Decided: November 15, 1912
• Status: Published

Opinion

Van Kirk, J.

This action was brought to recover damages for fraudulent representations in the sale by defendant to plaintiff of a coal and ice business, with certain personal property connected therewith, in Schenectady. "The verdict of the jury was taken, subject to the opinion of the court as to the question presented by defendant’s motion, as follows: The defendant moved to dismiss the complaint on the ground that the plaintiff had elected to rescind the contract and that, therefore, he could not maintain this action, which is based upon the contract. The plaintiff served a summons without a complaint. At the same time with the summons, he served a typewritten statement signed by him in which in substance he stated that he rescinded the contract, that he offered to restore to the defendant all of the personal property purchased by him, reciting the same as in the bill of sale at the time of the purchase, and demanded that the defendant pay to him the purchase price. The defendant has pleaded this paper as a rescission of the contract.

Misrepresentation by one party of a fact essentially entering into the inducement upon which the other party enters a contract is a ground on which the latter may avoid or rescind a contract. 6 English Ruling Cases, 746. There was no reservation in the contract of a right to rescind; and the plaintiff’s right to rescind depended upon the existence of false representations made by the defendant to him, which induced "him to purchase. The defendant made no reply to the paper so served upon him. At the time the complaint herein was served, the defendant was in no different position than that in which he would have been had the paper not been served. Tie has taken no action replying thereon and is in nowise prejudiced by the service thereof. The plaintiff, if false representations were made which induced him to purchase, had a right to elect his remedy, either to rescind the contract and bring an action to recover the purchase money, or bring an action to rescind, or to prosecute an action for damages. Vail v. Reynolds, 118 N. Y. 297, 302. The service of the said paper or notice was not an election which was binding on the plaintiff. In order that the election should be binding, the party must have manifested his election by an unequivocal act done with the necessary amount of knowledge as to his rights. 10 English Ruling Cases, 351.

In my judgment the paper or notice served was a tender or offer and demand which must either have been acted upon by the defendant or have been followed by some further act upon the part of the plaintiff before it was an election binding upon him. It was not such an unequivocal act as constitutes a binding election. When he served his complaint he was at liberty to serve a complaint demanding relief as he should then elect.

Motion denied. Enter judgment on verdict.