Kelly v. Kershaw

• Citation: 5 Utah 295,14 P. 804
• Court: Supreme Court of Utah
• Decision Date: 02 September 1887
• Parties: JOHN J. KELLY AND ANOTHER, RESPONDENTS, v. ANDREW J. KERSHAW AND WIFE, APPELLANTS

14 P. 804

5 Utah 295

JOHN J. KELLY AND ANOTHER, RESPONDENTS, v. ANDREW J. KERSHAW AND WIFE, APPELLANTS

Supreme Court of Utah

September 2, 1887

APPEAL from an order of the district court of the first district overruling a motion for a new trial. The opinion states the facts.

Affirmed.

Messrs Williams & White, for appellants.

Messrs Dickson & Varian, for respondents.

BOREMAN J. ZANE, C. J., and HENDERSON, J., concurred.

OPINION

BOREMAN, J.:

The respondent John J. Kelly, sold and conveyed to appellant, Andrew J. Kershaw, a parcel of land eighteen and one fourth feet front by fifty feet back, on Main street in the city of Ogden, and a quarter acre parcel in another part of the same city, all for the sum of $ 3,150. No part of this sum was paid down at the time of the purchase, but on the contrary, said J. J. Kelly loaned said A. J. Kershaw the sum of $ 850. Thereupon said Kershaw and his wife executed their note to said Kelly and wife, for the sum of $ 4,000, that being the amount of said purchase money and of said loan together; and the appellants, as security for said note, executed and delivered to the respondents a mortgage upon the two parcels of ground above referred to, and described in the deed of Kelly to Kershaw, and also upon another parcel of ground, situate also in the city of Ogden, but belonging to the wife of said Kershaw. This action is brought to enforce the collection of said note of $ 4,000 by the foreclosure of the mortgage given to secure it. The defendants in the action, (the appellants herein) filed their answer and cross-complaint. Judgment having been rendered for the plaintiff, the defendants moved for a new trial, which was denied. Thereupon the defendants appealed to this court, from the order overruling the motion for a new trial.

1. The first point to which our attention has been called, is the alleged right of the appellant, A. J. Kershaw, to have the purchase and sale of the parcel of ground, 18x50 feet, on Main street in Ogden, rescinded.

It is a general rule that a party to a contract is not entitled to have it rescinded unless both parties can be restored to the condition in which they were before the contract was made. It is also a general rule that a part of a contract cannot, without mutual consent, be rescinded unless the whole is rescinded.

The purchase of that one parcel of ground, 18x50 feet, was not a contract by itself. It was but a part of a transaction which embraced other property. The quarter acre tract was bought at the same time and was a part of the same transaction. The quarter acre tract was disposed of by Kershaw, before the institution of this action. He had deeded it away, and it could not be returned to Kelly, nor was there any offer to do so. Kershaw received the money for the quarter acre tract and retained it. Kelly received no benefit whatever from such sale. It is inequitable that Kershaw should, while retaining the benefits arising from one part of the contract, be allowed to rescind the other part.

The fact that Kelly consented to such sale, would not affect his right to be placed in statu quo before a rescission takes place. He may have consented to such sale upon the assumption that Kershaw, by such sale was waiving and intending to waive all claim of right to a rescission. It does not appear however that at that time Kershaw claimed any right to rescind; nor does it appear that prior to the sale of the quarter acre by Kershaw, any notice was given to respondent, J. J. Kelly, that after the sale the appellants would seek to escape any responsibility on the residue of the transaction by their claiming, as to J. J. Kershaw, a rescission, and, as to Sarah Kershaw, a release. Justice and fair dealing would require that such notice should have been given. Had this been done, it is not probable that Kelly would have given his consent to the sale; but had he done so, there would have been some show of reason why he should not now complain of it.

The cross-complaint says that the loan of $ 850 was also a part of the same transaction in which the purchase and sale of the two parcels of ground took place. This money has not been paid back, nor offered to be paid back. The appellants claim that the purchase and sale, the loan of the $ 850, and the giving of the note and mortgage were all one contract. All these parts of one transaction would have to be rescinded or none of it be rescinded. As the appellants are not in a position to put the parties in statu quo, and do not offer to do so, they are not in a position entitling them to a rescission of a part of the contract. There is...