Tibbs v. Timberlake
| Decision Date | 07 October 1823 |
| Citation | 14 Ky. 12 |
| Parties | Tibbs and Clarke v. Timberlake. |
| Court | Kentucky Court of Appeals |
FROM THE BOURBON CIRCUIT COURT.
HARDIN for plaintiffs
HOPKINS and BRECKINRIDGE for defendant.
This was a bill in chancery exhibited by Timberlake against Tibbs and Clarke, to be relieved against a judgment at law recovered by Tibbs, as assignee of Clarke, on a note for one hundred dollars, which was executed by Timberlake to Clarke in August, 1817, and made payable the first of January thereafter.
Where time is necessary to ascertain whether a fraud has been committed in the sale of property, or not, an offer to return the property recently after the contract, is not necessary all which can be required, is an offer to return it recently after the discovery of the fraud.
In his bill, Timberlake charges, that the note was given by him for the price of a horse which he purchased of Clarke; that at the time he made the purchase, the horse was lame in one of his fore legs; but that relying on the assurances of Clarke together with those of Tibbs, with whom Clarke was then in company, that the horse had recently, on the night before, at Postlethwait's tavern in Lexington, received his lameness, he was induced to believe the lameness of the horse not to be of a character calculated to produce any serious or permanent injury to him, and concluded the purchase by Clarke's undertaking that the horse should shortly thereafter recover from his lameness. Timberlake also alleges, that at the time of making the contract, he was under the impression that the horse was the property of Clarke, and accordingly, in the presence of Tibbs, executed his note to Clarke for the price, payable the first of January, 1818; that whilst he was contracting with Clarke Tibbs took a lively interest in the trade, and united with Clarke in representing the horse to have received his lameness the night before, and that it would shortly be removed; but that he has since discovered that the horse, at the time of the sale, was in fact the property of Tibbs, and that the note, which was given for the price, has since, for no other consideration than that of his right to the horse been assigned to him by Clarke. Timberlake moreover charges, that the horse at the time of the sale, was affected with a chronic and permanent lameness; and that Clarke and Tibbs, well knowing the nature and extent of the lameness, concealed the same from him, and the more easily to effect their fraudulent purpose, conceived the design of uniting their exertions to sell the horse, making Clarke the instrument to propose a sale, whilst Tibbs would aid in representing the state and nature of the apparent lameness. Timberlake finally alleges the conduct of both Clarke and Tibbs, in making the sale, to be fraudulent; that after discovering the fraud and finding that Tibbs was the rightful owner of the horse, and had obtained an assignment of the note which had been given for the price, he offered to return the horse to Tibbs and cancel the contract; but Tibbs positively refused to do so. The bill prayed and obtained an injunction, and asked for the appropriate relief, & c.
A tender of the property is not requisite; if, on application, the seller declares that he will not receive it, he, by such declaration, renders a tender unnecessary.
Clarke admits making sale of the horse for the price of $100, and having received the note of Timberlake therefor, as charged in the bill. He admits that the horse, at the time of sale belonged to Tibbs; but denies having been concerned in the sale for any fraudulent purpose. He states...
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