Heastings v. McGee

• Decision Date: 03 January 1871
• Citation: 66 Pa. 384
• Court: Pennsylvania Supreme Court
• Parties: Heastings <I>versus</I> McGee.

66 Pa. 384

Heastings versus McGee.

Supreme Court of Pennsylvania.

November 3, 1870.

January 3, 1871.

November 3d 1870.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the District Court of Allegheny county: No. 128, to October and November Term 1870.

J. Barton, for plaintiff in error.—The action was for deceit in the sale; a return was not necessary: Borrekins v. Bevan, 3 Rawle 23; Fraley v. Bispham, 10 Barr 320; Carson v. Baillie, 7 Harris 375; Lord v. Grow, 3 Wright 88.

A. M. Brown, for defendant in error, cited Pearsoll v. Chapin, 8 Wright 9; Turnpike Co. v. Comm'rs, 2 Watts 433; Staines v. Shore, 4 Harris 200; Dewey v. Erie, 2 Id. 211; Roth v. Crissy, 6 Casey 145; Summers v. Ritchie, Id. 147 in note; Hilliard on Sales 317, 319; Hopkins v. Appleby, 1 Stark. 477.

The opinion of the court was delivered, January 3d 1871, by WILLIAMS, J.

This was an action on the case for deceit in the sale of a horse. The jury found, under instructions of the court, that the horse was fatally diseased at the time of the sale, and that the defendant knew it, and assessed the plaintiff's damages at $103.50, subject to the opinion of the court on the question of law reserved, viz., Whether the plaintiff, having failed or neglected to offer to return the horse to the defendant, but on the contrary having retained and destroyed the animal without having made any such offer, can maintain this action for purchase-money? On the hearing of the reserved question, the court directed judgment to be entered in favor of the defendant non obstante veredicto, which is the error assigned here. Where the vendor of personal property makes fraudulent representations in regard to its value, or is otherwise guilty of fraud in making or performing the contract, the vendee has his election of remedies for the injury; he may stand to the bargain, even after he has discovered the fraud, and recover damages on account of it, or he may rescind the contract and recover back what he has paid: Sedg. Dam. 296; 2 Kent's Com. 480 note a; Westin v. Dormes, Douglass 23; Torrers v. Barrett, 1 Term R. 133; Boorman v. Jenkins, 12 Wend. 566; Waring v. Mason, 18 Id. 425; Whitney v. Allaire, 4 Denio 554. In the case last cited, Jewett, J., says: "A return of the property to the vendor, or an offer to return, is in no case necessary, except to enable the vendee to withhold or recover back the price. When there is an actual disaffirmance of the contract, the title to the property is revested in the vendor. In all cases of fraud, the vendee, who alone has the right of disaffirmance, may remain silent, and bring his action to recover damages for the fraud, or may rely on it by way of defence to the action of the vendor, although there has been a full acceptance by him, with knowledge of the defects in the property. An affirmance of the contract by the vendee, with such knowledge, merely extinguishes his right to rescind the sale. His other remedies remain unimpaired. The vendor can never complain that the vendee has not rescinded. The distinction between these two forms of action, as a remedy for the fraud, is recognised in Pearsoll v. Chaoin. 8 Wright 9, the case mainly relied on by the court below to sustain its ruling of the reserved question. There the action was assumpsit to recover back the price paid for the land, and it was held that the vendee must first tender a reconveyance. And why? Because his action was in...