Sisson v. Hill

• Decision Date: 25 February 1893
• Citation: 18 R.I. 212,26 A. 196
• Parties: SISSON et al. v. HILL.
• Court: Rhode Island Supreme Court

26 A. 196

18 R.I. 212

SISSON et al.

v. HILL.

Supreme Court of Rhode Island.

Feb. 25, 1893.

Action by Sisson, Potter & Co. against Alpha R. Hill. From a judgment for defendant, plaintiffs petition for a new trial. Petition granted.

Dexter B. Potter, for plaintiffs.

Charles H. Page and Franklin P. Owen, for defendant.

MATTESON, C. J. This is an action of replevin to recover goods which the plaintiffs allege that the defendant fraudulently obtained from them under the guise of contracts of sale. The only goods with which we are concerned in the present inquiry are those obtained on September 25, 1891. For these the defendant paid the plaintiffs $50 in cash, and also gave them certain notes. The plaintiffs returned these notes to the defendant before bringing the suit, but they retained the money, claiming at the trial that the goods replevied were less in amount than the goods obtained from them by $100. The court below instructed the jury that, if the plaintiffs elected to rescind the contract of sale of September 25, 1891, they should have returned both the money and the notes before suit, and that, having failed to return the money, they could not recover the goods. The plaintiffs excepted to this instruction, and now petition for a new trial on the ground that it was erroneous. There are undoubtedly numerous cases which support the instruction. We have no disposition to find fault with the application of the rule to cases of executory contracts of sale, in which a party seeks to rescind the contract on the ground of the failure of the other to fulfill his part of the contract, and which it is said in Duval v. Mowry, 6 R.I. 479,487, constitute most of the cases in which a return has been held necessary before an action can be brought. This court, however. has never been disposed, apparently, to apply the rule, any further than may be necessary, to cases of the avoidance of contracts on the ground of fraud. In Duval v. Mowry, Id. 479, 485; Chief Justice Ames remarks: "But we do not hold that the rigid rule of tender before action, known to rescission under and by virtue of a contract, applies to cases of the avoidance of a contract on the ground of fraud. In the former case the pursuing party is dealing with one presumed to be honest, and can afford to wait; in the latter, with one who has defrauded him in the very matter of the suit; and he should be delayed by no useless ceremony in the way of the prompt recaption of his goods, or of the service of his writ in a suit for damages for the tortious con version of them. Such a condition to a remedy in such a case is wholly unknown in courts of equity, where cases of the rescission and cancellation of contracts on the ground of fraud usually come; the court deeming it quite sufficient to provide that justice be done to the injurious, as well as to the injured party, by its own action. * * * No good reason can be given why, when courts of law deal with the rescission of contracts on the ground of fraud, they should not do so, so far as the nature of their remedies will permit, upon the same footing with courts of equity." And see, also, Warner v. Vallily, 13 R. I. 483, 484, in which the court refused to apply the rule to an action of trover in a case in which the vendor had received money only as a part of the consideration.

Two reasons have been stated for the rule. One is the protection of the vendee. With reference to this it may be said that, while the substantial rights of the fraudulent person who is proceeded against should, undoubtedly, be preserved, the person who has been deprived of his property by fraud under the guise of a contract of sale ought not to be defeated, delayed, or embarrassed by technicalities or useless ceremonies. The fraudulent vendee is in no position to demand anything more than protection that the vendor at the same time that he obtains justice shall do justice. A return or tender of the consideration, especially when it consists merely of money or promissory notes or like securities, before the bringing of the suit, is not necessary to the protection of the vendee, since the court in which the action is pending can compel such return, so far as may be necessary to do justice to the vendee, by making it a condition of its judgment, or by withholding its judgment, or staying execution on it, until a compliance with its order for such return.

The other reason, and perhaps the one more frequently assigned, for the rule, is purely technical. It is that the vendor cannot rescind the contract and retain the money, because ho cannot rescind it in part and affirm it in part, but must rescind in toto, if at all. Chief Justice Durfee, in Warner v. Vallily, above, clearly shows how fallacious is this reason when applied to cases of the avoidance of contracts...