Wood v. Garland

58 N.H. 154

• Court: Supreme Court of New Hampshire
• Decided: August 5, 1877
• Status: Published

Opinion

Stanley, J.

The general rule is, that the party who would recover back, on the ground of fraud, what he has parted with, must, before he brings his suit, return, or offer to return, what he has received; but this is not the rule where the vendor has received nothing in payment but the notes of the vendee. It is sufficient, in such cases, if the notes are produced on the trial ready then to be cancelled. When the sale is procured by fraud, no title passes; hence, rescinding the sale rescinds the contract of purchase, and the notes, never having been negotiated, fall with the contract. The production and cancelling the notes on the trial were therefore in season, as, by so doing, the plaintiffs placed it out of their power to make them available against the defendant. Bassett v. Brown, 105 Mass. 551; Thurston v. Blanchard, 22 Pick. 18; Nichols v. Michael, 23 N. Y. 264; Armstrong v. Tuffts, 6 Barb. 432.

Judgment on the verdict.

Bingham, J., did not sit.