Hopkins v. Snedaker

Citation71 Ill. 449,1874 WL 8695
PartiesELL NATHAN HOPKINS et al.v.JOHN S. SNEDAKER.
Decision Date31 January 1874
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Ford county; the Hon. A. J. GALLAGHER, Judge, presiding.

Messrs. SWAN & GRAY, for the appellants.

Messrs. WOOD & LOOMIS, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a bill in equity, brought for the rescission of an executed contract for the exchange of lands, whereby the appellee traded to the appellants 90 acres of land in Ford county, in this State, for a certain 80 acres of land in Missouri. The ground of the bill was, false and fraudulent representations as to the character and quality of the Missouri land.

The decree in the court below found that, on the 25th day of December, 1868, the complainant, being the owner of the Ford county land, traded the same to the defendants for the Missouri land; that the Ford county land of the complainant was put into the trade at $5000, and the Missouri land of the defendants at $1465; that defendants paid complainant $2500, and assumed a $1000 mortgage on the Ford county land, which they have since paid; that the false and fraudulent representations were made as charged; that complainant, upon the hearing, had tendered back a deed of the Missouri land, and that defendants, before the filing of the bill, had conveyed 40 acres of the Ford county land to a third party; declared that it was inexpedient to render a decree of a rescission of the whole contract, and decreed to the complainant the sum of $1875.20, being the amount for which the Missouri land was traded ($1465 with interest), and that the defendants have leave to withdraw the deed tendered to them of the Missouri land.

Defendants appealed to this court.

The proofs show a very clear case of deceit, and false and fraudulent representations as to the character and quality of the Missouri land, and such as manifestly entitles the appellee to relief.

It is objected against the decree, that appellee was not in a situation to restore to appellants what he had received from them in the trade. Appellee was in such situation, but not the appellants, they having sold 40 acres of the land they received. It was sufficient to make such an offer to restore in the bill. Webster v. French, 11 Ill. 275; Miller v. Whittaker, 23 Id. 453; Ryan v. Brant, 42 Id. 78. This, appellee did. He offered in the bill to reconvey the Missouri land; to repay the $2500, with interest, and also the $1000 mortgage which had been assumed and paid, if the court would decree a cancellation of the whole contract, or to restore a portion of what he had received, on cancellation of the contract as to that portion of the land not sold by appellants.

It is insisted that a rescission must be total, and not partial. This is the general rule; but appellants, by conveying a part of the land, had rendered a complete rescission of the contract impossible. The testimony agrees that the Ford county land was sold for $5000, and that the Missouri land was put in at a certain price, the parties only differing as to the precise sum, appellants testifying that it was $1365, and appellee that it was $1465. The evidence shows that the Ford county land was well worth $5000, and that the Missouri land might be called worthless, the evidence being that it was not worth more than 12 1/2 cents an acre, and, as it had never been occupied by appellee, and he tendered back a conveyance of it at the hearing, it was but just to allow, as the decree did, what...

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24 cases
  • Race v. Sullivan
    • United States
    • United States Appellate Court of Illinois
    • April 30, 1878
    ...M. Booth and Frank J. Loesch, for defendant in error; upon the question of variance between the allegations and proof, cited Hopkins v. Snedaker, 71 Ill. 449; Stanley v. Valentine, 79 Ill. 544. That the objection comes too late in this court, Tug Boat Dorr v. Waldron, 62 Ill. 221; Mains v. ......
  • Strong v. Lord
    • United States
    • United States Appellate Court of Illinois
    • March 31, 1881
    ...by the acts of their agent although done without their knowledge: Noble v. Cunningham, 74 Ill. 51; Tenney v. Foote, 95 Ill. 100; Hopkins v. Snedaker, 71 Ill. 449; Wolf v. Mills 56 Ill. 360. When fraud is charged no tender is necessary: Allen v. Millison, 72 Ill. 201; Bd. Sup'rs v. Henneberr......
  • Penn v. Fogler
    • United States
    • Illinois Supreme Court
    • October 25, 1899
    ...for under the prayer for general relief. Story, Eq. Pl. § 28; Stanley v. Valentine, 79 Ill. 544;Pope v. Leonard, 115 Mass. 286;Hopkins v. Snedaker, 71 Ill. 449. Moreover, the defendants here did not challenge the sufficiency of the cross bill by a demurrer, nor did they make any motion to m......
  • Clark v. O'Toole
    • United States
    • Oklahoma Supreme Court
    • March 9, 1908
    ...337, 2 N.E. 16; Allerton v. Allerton, 50 N.Y. 670; Vail v. Reynolds, 118 N.Y. 297, 23 N.E. 301; Shuee v. Shuee, 100 Ind. 477; Hopkins v. Snedaker, 71 Ill. 449; Whelan v. Reilly, 61 Mo. 565; Thomas v. Beals, 154 Mass. 51, 27 N.E. 1004. ¶24 That an offer to restore is sufficient when made in ......
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