Symns v. Benner

• Decision Date: 24 March 1891
• Citation: 31 Neb. 593,48 N.W. 472
• Parties: SYMNS ET AL. v. BENNER ET AL.
• Court: Nebraska Supreme Court

31 Neb. 593

48 N.W. 472

SYMNS ET AL.

v.BENNER ET AL.

Supreme Court of Nebraska.

March 24, 1891.

Syllabus by the Court.

1. The general rule is that a party who seeks to rescind a contract entered into on fraudulent representations must return or offer to return the property acquired by such contract within a reasonable time, so as to place the property and the adverse party substantially in the same condition as at the time the property was received. There are some exceptions to this rule, however.

2. One S. sold goods to B. upon the representation that he (B.) was entirely free from debt, that the goods in his store were paid for, and that he was in the habit of discounting his bills, and would pay the same within 10 days, whereupon goods to the amount of $500 were sold to him by S. In 10 days from the date of the purchase B. paid $100, and soon afterwards executed a mortgage for a large amount to his brother, and surrendered possession thereunder of his goods. Attachments, etc., were thereupon levied upon the goods, whereupon S. brought an action of replevin to recover the goods previously sold by him, and on the trial paid into court the amount of money paid by B. on the purchase, less the value of the goods sold by B. Held that, as there was uncertainty as to the amount of said goods sold by B., and as the offer to pay the residue of the $100 was made on the trial, and as soon as the amount was ascertained, it was within a reasonable time.

Error to district court, Richardson county; APPELGET, Judge.Frank Martin, for plaintiffs in error.

C. Gillespie, E. W. Thomas, J. D. Gilman, and Isham Reavis, for defendants in error.

MAXWELL, J.

The plaintiffs are wholesale grocers in Atchison, Kan. In August, 1888, C. F. Benner, one of the defendants, was engaged in the mercantile business in a small way in Falls City, Neb. He was anxious to add a line of groceries to his business, and, in order to obtain credit from the plaintiffs, represented to their salesman in substance that his stock was paid for, and that he discounted his bills from wholesale dealers. Relying upon these and other representations of Benner, the plaintiff sold him goods to the amount of $500. About 10 days after the sale took place Benner sent the plaintiffs $100, to apply on the purchase. A number of letters followed from the plaintiffs urging payment of the goods, but no other payment was made thereon. About the middle of September, 1888, C. F. Benner executed a mortgage to C. C. Benner, his brother, for more than $2,000, and the latter immediately took possession. Various creditors of C. F. Benner thereupon procured attachments, etc., and levied them on the goods in the possession of C. C. Benner. The plaintiffs in this action, as soon as they learned of the mortgage of C. F. Benner to his brother, sought to rescind the sale, and brought an action of replevin against the two Benners, under which they took all the goods undisposed of which had been purchased from the plaintiffs. It appeared on the trial that $47 worth of the goods had been sold, whereupon the plaintiffs paid into court $53 for the use of C. F. Benner. Upon the conclusion of the testimony for the plaintiffs the defendants filed the following motion, which was sustained: “Defendants move the court to direct the jury to find a verdict in favor of the defendants, for the reason that the plaintiffs have not made out a prima facie case to entitle them to recover, for the following reasons: (1) There is no proper rescission of the contract of purchase of the goods by C. F. Benner from the plaintiffs. It has developed in the testimony that the purchase was...