Smith v. Sarah J. Brittenham.

• Decision Date: 21 March 1881
• Citation: 98 Ill. 188,1881 WL 10464
• Parties: COLUMBUS C. SMITHv.SARAH J. BRITTENHAM.
• Court: Illinois Supreme Court

98 Ill. 188

1881 WL 10464 (Ill.)

COLUMBUS C. SMITH

v.SARAH J. BRITTENHAM.

Supreme Court of Illinois.

Filed at Springfield Mar. 21, 1881.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Appellate Court for the Third District;-- heard in that court on writ of error to the Circuit Court of DeWitt county; the Hon. LYMAN LACEY, Judge, presiding.

Messrs. TIPTON & RYAN, for the plaintiff in error:

1. The value of the land in controversy is material, and the rule of equity pleadings is that all material facts must be clearly and positively stated. The bill is defective in its frame. The rule in chancery is the same as at law, that every averment necessary to entitle the complainant to relief must be contained in the stating part of the bill, and if every necessary fact be not distinctly and expressly averred, the defect can not be supplied by inference or by reference to other parts of the bill. Primmer v. Patton & Co. 32 Ill. 528; Wright v. Dame et al. 22 Pickering, 55. See also McElwain v. Mills, 9 Wend. 548; McIntyre v. Fuestus, 6 Paige Ch. R. 239; Spence v. Duren, 3 Ala. 250; Daniels v. Taggart, 1 Gill & John. 311; Edwards v. Manny, 1 Hawks, 359; Townsend v. Heneleron, 1 Bland, 236; Hood v. Inman, 4 Johns. Ch. R. 437; Edwards v. Chilton, 4 W. Va. 352.

2. When a bill is dismissed notice must be given to the opposite party of a motion to reinstate. Smith v. Wilson, 26 Ill. 128; Tibbs v. Allen, 29 Id. 535; Welch v. Louis et al. 31 Id. 446.

3. A party can not rescind a contract of sale without a return of the property purchased or received in exchange, in as good condition as when received, unless it is entirely worthless. Benjamin on Sales, p. 414, § 452; Griffith v. Frederick Co. Bank, 6 Gill & John. (Md.) 424; Martin v. Bardus, 1 Freeman's (Miss.) Chancery, 35; Blen v. The Bear River and Auburn Water and Mining Co. 20 Cal. 602; Fisher v. Wilson, 18 Ind. 123; Cook v. Gilman, 34 N. H. 557; Shephard et al. v. Fisher et al. 17 Ind. 229; Shaw et al. v. Barnhart, Id. 183; DeShaw's Exrs. v. Robinson's Exrs. 17 Ark. 228; Weeks v. Rob, 42 N. H. 316; Clarkson v. Mitchel, 3 E. D. Smith (N. Y.) 269; Williamson v. Moor, 2 Disney (Ohio), 30; Getring v. Newell et al. 9 Ind. 572; Garand v. Boling, 1 Hempst. 710; Lone v. Latimer, 41 Ga. 171; Turner, etc. v. Irun Clay, etc. 3 Biss. 52; Ellington v. King, 49 Ill. 449; Jarrett v. Martin, 44 Mo. 275; Johnson v. Walker, 25 Ark. 176.

A party can not rescind a contract and at the time retain the consideration, in whole or in part, which he has received under it. Jennings v. Gage, 13 Ill. 610; Coolidge v. Bingham, 1 Metcalf, 550; Miner v. Bradley, 22 Pick. 457; Persley v. Balch, 23 Id. 286; Norton v. Young, 3 Greenleaf, 30; Cushman v. Marshall, 21 Me. 122; Sumner v. Parker, 36 N. H. 449; Weeks v. Robie, 52 Id. 316; Buchenau v. Horney, 12 Ill. 336.

If the complainant, defendant in error, can not return the identical goods she received, so as to put plaintiff in error in statu quo, she can not rescind, but must sue at law. Barge v. Cedar Rapids, etc., R. R. Co. 32 Iowa, 101; Parker v. Marques, 64 Mo. 38; White v. Thayer, 121 Mass. 227; Barfield v. Price, 40 Cal. 535; Groves v. Sanders, 3 Otto, 55; Constan v. Chapman, 3 Moak, 178, and notes; Grimolley v. Wills, 12 Id. and notes; Scott v. Bilney, 40 Miss. 119; Underwood v. West, 32 Ill. 397; Larned v. Holmes, 40 Miss. 30; Harding v. Hoodley, 11 Wheat. 103; Slaughter, Admr. v. Green, 13 Wall. 379; Story on Sales, § 426; Story's Eq. Jur. §§ 494, 499.

And the ability to restore the things purchased unchanged in condition, is indispensable to the exercise of the right to rescind, so that if she innocently changed that condition while ignorant of the fraud, she can not rescind. Benjamin on Sales, supra; Hunt v. Silk, 5 East, 449; Blackburn v. Smith, 2 Exch. 783; Sully v. Team, 10 Id, 535; Clark v. Dick, E. B. & E. 148; Savage v. Corning, 16 W. R., 1 Irish C. L. R, 434; 2 Chitty on Contracts, (11th Am. ed.) 1092; Morse v. Brackett, 98 Mass. 209; Lyon v. Bertram, 20 How. (U. S.) 149; Bartlett v. Drake, 100 Mass. 176; Coolidge v. Brigham, 1 Metcalf, 547; Stevens v. Austin, Id. 557; Kimbal v. Cunningham, 4 Mass. 502; Conner v. Henderson, 15 Id. 319; Thayer v. Turner, 8 Metcalf, 550; Martin v. Roberts, 5 Cushing, 126; Shepherd v. Temple, 3 N. H. 455; Wiggin v. Foss, 4 Id. 294; Lucy v. Bundy, 9 Id. 298; Cook v. Gilman, 34 Id. 456; Webb v. Stone, 24 Id. 282; Monahan v. Noyes, 52 Id. 232; Burton v. Stewart, 3 Wend. 236; Johnson v. Titus, 2 Hill, 606; Hammond v. Buckmaster, 22 Vt. 375; Fay v. Oliver, 20 Id. 118; Allen v. Edgarton, 23 Id. 442; Howard v. Cadwalader, 5 Blackf. 225; Peters v. Gooch, 4 Id. 511; Newell v. Turner, 9 Porter, 420; Bacon v. Brown, 4 Bibb, 91; Reed v. McGrew, 5 Ham. 386; Potter v. Titcomb, 23 Me. 300; Mixer's case, 4 Del. & J. (Am. ed.) 586; Rawlins v. Nickham, 3 DeG. & G. 322.

If a party, after discovery of the fraud, desires to rescind, he must announce his purpose and adhere to it. If he be silent and continues to treat the property received as his own, he will be held to have waived his objection, and will as conclusively be bound by the contract as if the mistake or fraud had not occurred. This is especially applicable to speculative property like that here. Thomas v. Bartow, 48 N. Y. 200; Flint v. Wood, 9 Hare, 622; Jennings v. Broughton, 5 De G., M. & G. 139; Lloyd v. Brewster, 4 Paige, 537; Saratoga & S. R. R. Co. v. Rowe, 24 Wend. 74; Mintum v. Main, 3 Seld. 220; 7 Rob. Prac. C. 25, sec. 2, p. 432; Campbell v. Fleming, 1 A. & El. 51; Sugden on Vendors, (14th ed.) 335; Dirnon v. Providence, W. & B. R. R. Co. 5 R. I. 130.

The defendant in error should have offered in her bill to pay taxes and for repairs. Wilson v. Haecker et al. 85 Ill. 349; Chambers et al. v. Jones, 72 Id. 280.

The former adjudications of this case by this court are not a bar to submitting the same now on its merits. Messrs. LODGE & HUSTON, and Mr. L. WELDON, for the defendant in error:

The writ of error will not lie in this case after the partial reversal of the decree of the circuit court and a remanding of the cause for further proceedings. From these subsequent proceedings an appeal was prosecuted to the Appellate Court, when the entire record was reviewed, and the entire decree affirmed, and this at the instance of the plaintiff in error.

The rules governing the rescinding of trades do not apply, for no trade was, in fact, consummated between the parties to this suit. The deed was obtained by Smith, by means of false pretenses in writing--the false invoices; its delivery was procured by fraud, and the transaction did not amount to a trade between these parties, and hence there was no trade or contract to rescind. The essential element of two consenting minds was lacking, and Mrs. B. acted under the belief that a trade had been made on the basis proposed by Smith, when in fact no such trade had been or ever was made.

The doctrine of equity is compensation,--not to allow a party to rescind a contract and retain advantages under it. Bryant v. Brant, 42 Ill. 78.

In Whitney v. Roberts, 22 Ill. 381, this court held that a deed obtained by fraud or deceit, was void and that the grantee of the defrauded party could set it aside in equity.

There was no proof that any taxes were paid, or repairs or improvements made, and the rents exceed the value of the goods $800.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a bill in chancery, filed in the circuit court of DeWitt county, on the 14th day of August, 1874, by Sarah J. Brittenham against Columbus C. Smith, to have set aside a conveyance of 237 acres of land, made by her to him on the 12th day of January, 1869, in exchange for a stock of goods, on the ground of alleged fraud on the part of Smith in the making of the contract for such exchange.

Personal service of summons was had on Smith, and he failing to appear and answer, the bill was taken for confessed against him at the August term, 1874.

At the following December term an order was made dismissing the cause for want of prosecution, which order, two days afterward, at the same term, was set aside, and the cause reinstated without notice to Smith. He did not appear in the court until after the final decree. At the December term, 1876, the cause was referred to the master, to take testimony, etc., who reported that the value of the goods received by the complainant was $4500, and the rental value of the land during the time the defendant had held the same under the deed, to be $5300, and at the same December term the court rendered a decree cancelling the deed and setting off the value of the goods against the rent of the land. At the next March term Smith entered a motion to vacate the decree and for leave to answer the bill. The court overruled the motion, from which decision Smith prosecuted an appeal to this court, and the ruling of the circuit court in refusing to set aside the decree and admit an answer, was affirmed. See Smith v. Brittenham, 88 Ill. 291.

This court holding that this appeal did not bring before it anything but the decision of the circuit court overruling said motion, and the Appellate Court having in the meantime been organized, afterward, Smith sued out a writ of error from the Appellate Court for the Third District, to the circuit court, and filed in the Appellate Court a complete copy of the record, and on a final hearing in that court at the November term, 1878, the decree of the circuit court, in the respect of ordering a writ of assistance to issue, was reversed, and in all other respects said decree was affirmed. The cause was remanded to the circuit court, where such proceedings were had, at the March term, 1879, that another writ of assistance was ordered by the circuit court. From this order Smith again appealed to the Appellate Court, and that court at the May term, 1879, affirmed the order of the circuit court, awarding the writ of assistance.

From this judgment of affirmance Smith again appealed to this...