Ackerman v. Mcshane
| Decision Date | 01 April 1891 |
| Docket Number | 10,763 |
| Citation | 43 La.Ann. 507,9 So. 483 |
| Court | Louisiana Supreme Court |
| Parties | CATHERINE V. ACKERMAN v. A. J. MCSHANE |
APPEAL from the Civil District Court, Parish of Orleans. Monroe J.
J. M Pratt, for Plaintiff and Appellant.
P. L Fourchy for Defendant and Appellee.
The plaintiff was placed in possession of the succession of Harry F. Hall as universal legatee.
The defendant was the surviving partner of the firm of Harry F Hall & Co.
In order to finally settle the affairs of the partnership the plaintiff and defendant, on the 10th day of October, 1890, entered into a compromise in which plaintiff received $ 20,000 in cash, in full satisfaction and settlement of all interest of the testator Hall in the partnership of H. F. Hall & Co., and she relieved the defendant from all further liability, and authorized him to continue on his account with the business of the late firm.
A short time after this compromise had been consummated plaintiff brought the present suit for an additional amount of $ 9000.
The petitioner sets forth that the surviving partner made untrue statements of the condition of the partnership; that he charged amounts which were not due, and committed frauds to enable him to buy her interest, which he bought for $ 20,000 although worth $ 29,000.
The plaintiff does not allege that she made a tender of the amount received by her as one of the parties to the compromise. She prays to recover the sum of $ 9000 as a balance due her in excess of the amount paid in accordance with the terms of the compromise.
If the prayer were granted, the compromise alleged to be null on account of fraud would be given effect to, in so far as relates to the amount received by the plaintiff.
"By fraud or dole a contract perishes."
The fraud denounced can not be limited and a part selected of the contract to enure to plaintiff's benefit.
She alleged fraud, if proven, it can not be cured.
The parties must be placed in the position in which they were before it was entered into.
Instead, it is proposed to supplement the amount received to a sum equal to the alleged value of the property.
The defrauded party, if defrauded, can not be restored to his original rights in the manner proposed. Good pleading and regularity, which should characterize legal proceedings require that in suits of this nature the party shall resort to an action in rescission, and that the...
To continue reading
Request your trial
-
Clough v. Holden
...undoing * * * of the contract." 1 Bigelow on Law of Fraud, 74. See also, 2 Chitty on Contracts [11 Am. Ed.] 1089, note m, 1092; Ackerman v. McShane, 9 So. 483; Kinne Webb, 49 F. 512. (5) And if a party defrauded would exercise the right to rescind he must do so promptly on discovery of the ......
-
Johnson v. Mansfield Hardwood Lumber Company, Civ. A. No. 5562.
...what was received thereunder and the refusal of defendant to accept it. Byrne v. Hibernia National Bank, 31 La.Ann. 81; Ackerman v. McShane, 43 La.Ann. 507, 9 So. 483; Johnson v. Shreveport Waterworks Co., 109 La. 268, 33 So. 309. In this case the plaintiff does not allege even an informal ......
-
Benson v. Metropolitan Cas. Ins. Co. of N. Y.
...or for error of law or lesion, in a direct action. Civ.Code, arts. 3071, 3078-3080; Adle v. Prudhomme, 16 La.Ann. 343; Ackerman v. McShane, 43 La.Ann. 507, 9 So. 483; Oglesby v. Attrill, 105 U.S. 605, 26 L.Ed. 1186.' Russ v. Union Oil Co., 113 La. 196, 36 So. 937, 940. Also see: Cassidy v. ......
-
Stoufflet v. Duplantis
... ... or for error of law lesion, in a direct action. Civ.Code, ... arts. 3071, 3078-3080; Adle et al. v. Prudhomme, 16 La.Ann ... 343; Ackerman v. McShane, 43 La.Ann. 507, 9 So. 483; Oglesby ... v. Attrill, 105 U.S. 605, 26 L.Ed. 1186.' Russ v. Union ... Oil Co., 113 La. 196, 36 So. 937, ... ...