Knappen v. Freeman
| Decision Date | 12 December 1891 |
| Citation | 50 N.W. 533,47 Minn. 491 |
| Parties | Sarah L. Knappen v. Orlando H. Freeman |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from an order of the district court for Hennepin county, refusing a new trial after a trial before Smith, J and judgment ordered for defendant.
Order affirmed.
James O. Pierce, for appellant.
Flannery & Cooke, for respondent.
Action on a promissory note. The answer contains -- First what is evidently intended for a defence to the note second, what is pleaded as a counterclaim, and on which affirmative relief a judgment for money is demanded. The defence alleges that the note was given upon and for a part of the consideration of a sale and conveyance of real estate by plaintiff to defendant. That, to induce him to make the purchase, the plaintiff falsely and fraudulently represented to him that the land was high and rolling covered with a growth of scrub oak, and good farming land suitable for cultivation, and that he made the purchase relying on such representations, and as consideration therefor paid in cash, on making the contract of sale, $ 200; and on receiving the deed, $ 550; assumed the payment of a mortgage on the land; and executed the note in suit. That in fact the land was not high and rolling, was not covered with scrub oak, was a swamp and lake covered with water, and unfit for cultivation. That immediately on discovering the fraud he commenced an action to have the note delivered up and cancelled, and executed and tendered to plaintiff, on condition of her returning the note to him, a deed reconveying the real estate, with covenants of warranty against any acts done by him. The counterclaim sets forth the same transaction; the same representations, and their falsity; the payment by defendant, before ascertaining the falsity of the representations, of taxes, of interest on the mortgage which he assumed to pay, and on the note in suit; but does not allege a tender of a reconveyance, and demands judgment for the various sums so paid by him, with interest. It is strictly a rule of pleading that each cause of action, defence, or counterclaim must be complete in itself, and that no fact alleged in one will aid another, unless realleged or incorporated by reference in the latter. When defendant began his evidence an objection was made to his introducing any evidence, on the ground that the matter stated as a defence is no defence; that it is insufficient as an answer of a former action pending, and the fraud alleged is no defence to the action on the note, without asking the affirmative relief that the contract be rescinded, -- in other words, that the fraud is not matter of defence, but of counterclaim, had it been pleaded as such. We do not think the answer was intended as a plea of a former action pending, but that it was intended to show as a defence that the defendant had a right to rescind, and had rescinded, the contract upon which the note was given. It alleges the doing by defendant of all that could be required of him to constitute a rescission, if he had, as he undoubtedly had, on the allegations of the answer, a right to rescind. The objection was properly overruled.
It is claimed that the counterclaim, as alleged in the answer, is insufficient, because it does not tender back anything, or allege any previous attempt at rescission, or any disaffirmance by defendant of the contract, or any demand for rescission. The demand, in the counterclaim, of judgment for all the moneys he had paid upon or in consequence of the contract, of restoration to him of all he had parted with by reason of it, was a sufficient disaffirmance of the contract and demand for its rescission; for such a demand could be based only on a disaffirmance and rescission. When a party seeks to rescind a contract by his own act, he must give the other party notice of his rescission, and restore or offer to restore to him whatever he received from him under or by reason of the contract. In other words, he cannot repudiate its obligations and retain its benefits. When, however, he seeks the aid of a court to rescind the contract, it is not necessary that he should have previously attempted a rescission, nor that he should have made any tender to the other party, except where such tender might be necessary to put the party in default. What he ought to do, and must do to reinstate the other party in statu quo, as a condition of the rescission, is then for the court to determine. All that is required to justify a rescission by the court is that the contract is one that a court of equity will cancel or rescind on the ground alleged, that such ground of rescission exists, and that the plaintiff has not lost his right to a rescission by affirmance, laches, or otherwise. It was one of the rules of pleading in courts of equity, in suits where the court might impose conditions on the plaintiff, or give the defendant affirmative relief, as in suits for specific performance, cancellation of instruments, rescission of contracts, or for accounting, that the plaintiff in his bill should offer to do whatever the court might deem equitable. This was upon the maxim that he who seeks equity must do equity. But, although at one time a bill was demurrable if it omitted this offer, the requirement...
To continue reading
Request your trial