Griggs v. Meek

• Decision Date: 16 February 1928
• Docket Number: 1333
• Citation: 264 P. 91,37 Wyo. 282
• Parties: GRIGGS v. MEEK et al.
• Court: Wyoming Supreme Court

264 P. 91

37 Wyo. 282

GRIGGS v. MEEK et al.

No. 1333

Supreme Court of Wyoming

February 16, 1928

Argued before BLUME, C. J., KIMBALL, J., and BROWN, District Judge.

Abraham Crawford, of Evanston, and H. H. Henderson and Wade M. Johnson, both of Ogden, Utah, for appellants.

P. W Spaulding, of Evanston, for respondent.

OPINION

BROWN District Judge.

Counsel for defendants have filed a petition supported by brief asking a rehearing on the following grounds:

(1) "This court erred in affirming the judgment of the lower court by deciding that a party who has made a sale of personal and real property can rescind the same, and in the same action for a rescission recover damages."

(2) "That the finding that the personal property delivered by Griggs to the defendants has been converted and disposed of by the defendants, or either of them, is without any evidence to sustain it."

The first proposition was discussed in our former opinion, and sufficiently so, but that our position may not be misunderstood, we add the following to what was there said:

Neither of the above assignments of error accurately states the finding and judgment of the court. The action was brought and prosecuted on the theory that plaintiff had rescinded the contract of sale on the ground that it was induced by the fraud of defendant Otto Meek, and was seeking the return of the property he had delivered to Otto Meek under the contract of sale. He was not seeking, nor was he awarded, damages by the court. He had some money in his possession that he had received under the contract, which he offered to bring into court to be disposed of as the court found just and equitable. This money the court ordered the plaintiff to retain, finding the value of the personal property received by defendants exceeded this sum. This we think proper. One who has been induced to sell personal property by the fraud of the other party has the choice of several remedies. He may ratify the contract and bring an action for deceit for any damages he has sustained, or he may rescind the contract and bring an action of replevin to recover the possession of the property he delivered to defendants, or he may waive the return of the property and bring an action of trover or trespass and recover its value at the time of the transaction. Pearson v. Wallace et al., 204 Mich 643, 171 N.W. 402; Amer v. Hightower, 70 Cal. 440, 11 P. 697. Wendling Lumber Co. v. Glenwood Lumber Co., 153 Cal. 411, 95 P. 1029; 24 R. C. L. 328. When he can only recover part of his goods thus obtained from him he may bring an action of trover for the value of the remainder at the time of the contract. Silvey v. Tift, 123 Ga. 804, 51 S.E. 748, 1 L. R. A. (N. S.) 386.

The court below found, with reference to the personal property:

"That the defendant Otto Meek received from the plaintiff and converted to the use of the defendants the personal property of plaintiff described in said amended petition, equal and greater in value to the payment made by said defendant Otto Meek to the plaintiff on account thereof, amounting to the $1,800 cash payment and the proceeds of the note of W. F. Goodwall for $2,000, as alleged in said amended petition."

The assignment of error, "that the finding that the personal...