Wilson v. Fisher

10 Del. 395

• Court: Superior Court of Delaware
• Decided: July 5, 1877
• Status: Published

Opinion

The Court,

Comegys, C. J.,

charged the jury, that if they were satisfied from the evidence that the defendant bought the horse solely by reason of a false representation of his soundness made to him by the plaintiff, and which the plaintiff knew to be false when he made it, he was not entitled to recover in the action, for the fraudulent representation would vitiate the sale in that case provided the defendant gave notice to the plaintiff within a reasonable time after discovering the fraud that he would not complete the bargain by paying the price bid for him, and returned the horse or offered to return it to him within a reasonable time afterward in rescission of the contract of purchase. But if the defendant before he took the horse away from the place of sale became aware of the fact that the plaintiff’s representation of his soundness was false, and yet took him away and home with him upon his subsequent admission and further representation that he “ was a little lame, but put him on the road and it would soon drive off,” and the jury were satisfied from the evidence that that representation was also false, and that the plaintiff knew it to be false when he made it, and that the horse was permanently lame and spavined, not being perceptible as it then stood before the persons attending the sale, and concealed his knowledge of that fact from the defendant, still the plaintiff was not entitled to recover in the action if the defendant within a reasonable time after discovering that the other representation was also false notified the plaintiff that he would not complete the bargain and returned the horse to the plaintiff, or offered to return it to him and rescind the sale.

What will constitute a reasonable time within which the offer to rescind a contract shall be made was a question for the court; whether such a reasonable time had elapsed before it was made in any case arising was a question for the jury. And that would depend to some extent on the circumstances of the case, but the general rule of law on the subject is that it must be done when allowable without undue delay, and with as much promptitude and dispatch as the circumstances of the case will admit; and as in this case the parties resided in the same county and within fifteen miles of each other, the defendant to have done it within a reasonable time should have returned the horse or offered to return it to the plaintiff on the ground of the fraud the same day he discovered it, or the next day at least, if possible, and he should within that time have taken it back ,to the plaintiff or to his premises and there left it, and that obligation was not discharged by a delivery elsewhere unless the plaintiff was there or resided there at the time. But even the fact that the plaintiff had just broken up housekeeping and had then no known place of residence anywhere could not have warranted the defendant under such circumstances in taking the horse to the premises of the father of the defendant and leaving him there in his absence, because it could not suffice for the purpose for which it was suggested by the counsel for the defendant, for that might have been done but was not done within a reasonable time after he had discovered the fraud, nor, in fact, until the fifth day after it.

The defendant had a verdict.