Mulhall v. Lucas

• Court: Idaho Supreme Court
• Writing for the Court: MCCARTHY, J.
• Citation: Mulhall v. Lucas, 217 P. 266, 37 Idaho 558 (Idaho 1923)
• Decision Date: 30 July 1923
• Parties: IDA MULHALL and WILLIAM MULHALL, Respondents, v. LEE LUCAS, Appellant

217 P. 266

37 Idaho 558

IDA MULHALL and WILLIAM MULHALL, Respondents, v. LEE LUCAS, Appellant

Supreme Court of Idaho

July 30, 1923

FRAUD-RESCISSION-LOSS OF RIGHT-RECOGNITION OF CONTRACT-USE OF PROPERTY-TREATING IT AS ONE'S OWN.

1. It is error to instruct that, in order to be entitled to rescind on the ground of fraud, a purchaser must prove that the thing bought is of no value for the purpose intended.

2. Equity will not grant a purchaser the right to rescind if after he has knowledge of the facts which entitle him to do so, he deals affirmatively with the subject of the contract in such a way as to recognize its validity.

3. Taking possession of the article and treating it as one's own, after knowledge of the facts, defeats the right to rescind.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Edgar C. Steele, Judge.

Action on promissory note. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs to respondents.

Fred E Butler and Edward C. Butler, for Appellant.

Notice of rescission not required where futile, but sufficient notice given under the circumstances of this case, and appellant's tender sufficient in point of time. (Triplett v. Rugby etc. Co., 66 Ark. 219, 49 S.W 975; Gale etc. Co. v. Stark, 45 Kan. 606, 23 Am. St. 739, 26 P. 8; 35 Cyc. 155, note 64; Black, Rescission, sec. 624, p. 1439.)

Instructions complained of erroneous because if there was a timely rescission of contract there could be no liability on the note and no question of value for "breeding purposes" in this case. (Black, Rescission, p. 1439; Gale v. Stark, supra.)

W. H. Plummer and Eugene A. Cox, for Respondents, cite no authorities.

MCCARTHY, J. Dunn, William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

MCCARTHY, J.

This is an action on a promissory note in the principal sum of $ 541, given by appellant to respondent Wm. Mulhall July 30, 1918, for the purchase price of a pure-bred bull and heifer, and assigned to respondent Ida Mulhall. The note was due and payable August 30, 1918. Appellant attempted a rescission of the contract on the ground of fraud.

The answer alleges appellant desired to acquire a herd of pure-bred shorthorn cattle, and respondent Wm. Mulhall agreed to sell him a registered bull and heifer, not related, for the purpose of beginning such a herd; that appellant, relying on the statements and representations of said respondent, believed that the bull and heifer sold to him by respondent were not related, but that they were, being half brother and half sister to each other; that, within less than ten days after he discovered the truth, appellant notified said respondent the cattle were related, and he would not pay the note, and tendered back the cattle. The jury found for respondents, and from a judgment in their favor for the principal amount, interest and attorney fee, this appeal is taken.

The principal assignment of error is that the court erred in instructing the jury in effect that they could not find for appellant unless they found the cattle were not of any value for breeding purposes. We conclude that this was an erroneous instruction. The answer, while not as well drawn as it might be, does substantially set up the defense that the bull and heifer were represented to be not related, that they were in fact related, and that this rendered them less valuable for the purpose for which they were bought. It was not seriously contended, and was not necessary to prove, that they were of no value for breeding purposes.

For other reasons, however, we conclude that this error in the instructions was not reversible. While it is stated in the answer that no consideration was given for the promissory note, it is not and cannot be seriously contended that there is any evidence tending to show utter lack of consideration. The true theory of the defense is that appellant was...