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house of said agent, paying him up the value (as the number of therefor the amount the agent had feet of lumber à portable saw-mill bid for it and a certain sum for back can saw in a day), and which is pe. rent, C. furnishing the money, which culiarly within the knowledge of A, never refunded or offered to re- the seller, upon the seller's statefund. C. continued to occupy the ment of which the buyer can rely house, always claiming it as his own, without negligence, the false statetill his death, when his sole heir ment may constitute a ground for sold the lot and the house in the rescission......
Did street, hy two separate and distinct 3. Same.-If the buyer relies upon a sales, to D. Suit by A. against D. statement of the scller that the forto recover possession of the house in mer will make a good and profitable the street as personal property, the trade by the purchase, it is the barabove facts appearing in evidence, er's own folly.......
...... Ib.d. but there being no written evidence 4. Same.--Promise.—The failure of of title to the lot in C. or D.
the seller to keep a mere promise, to Held, that, in the absence of a convey- be performed after the sale is com
ance to C., in terms sufficiently com- plete, is not a ground for rescisprehensive to cover the house as sion.......
...... Ibid. appurtenant to the lot, it was rea- 5. Same.-- Fraud.- Diligence. — The sonable to presume that it was prop- party claiming to rescind a contract crly treated by the parties as per- of sale on accouut of fraud must act sonalty.
at once upon discovery of the fraud; Held, also, that there was no trust in and he cannot postpone discovery favor of A.
by neglect to use ordinary diligence. Held, also, that a subsisting indebted- This rule must be strictly enforced
ness of C. to A. growing out of a where the law affords a complete partnership which had cxisted be- remedy in damages.... .Ibid. tween them long prior to the pur-6. Same.-Injury.—To authorize a rechase of the house by the former, scission of a contract of sale on the could not be deemed a refunding by ground of fraud, there must be an A. of the money paid by C. for the injury shown as the result of that house. Foy et al. v. Reddick.....414 fraud.......
See GUARDIAN AND WARD, 5.
See Railroad, 9.
RESTRAINT OF TRADE.
See DAMAGES, 2.
1. Sale.-Suit by the buyer to rescind
an executed contract for the sale of
one-half of a portable mill. Hcld, that an averment that the seller
never intended that the buyer should derive any benefit from the mill, or exercise any control over it, could
add no force to the complaint. Ileld, also, that the fact that after the
sale was completed the buyer was not permitted to collect money or examine the books, could not entitle him to rescind the contract. Sieve
king et al. v. Litzler..................13 2. Same.- Misrepresentation.— Value.
A misrepresentation by the seller as to the value of the article offered for sale is not available to rescind the contract; but where a fact is stated falsely which goes to make
ue (as the number of feet of lumber a
portable saw-mill can saw in a day), See Highway.
and which is peculiarly within the
knowledge of the seller, upon the RULES OF COURT.
seller's statement of which the buy
er can rely without negligence, the Supreme Court, abstracts. See DOHERTY false statement may constitute a v. McWORKMAN, 383.
ground for rescission.............. Ibid.
3. Same.-If the buyer relies upon a 1. Change of Venue.- Circuit Court. statement of the seller that the for
A rule of the circuit court requir- mer will make a good and profitable ing an application for a change of trade by the purchase, it is the buyvenue on account of local prejudice er's own folly..
..Ibid. to be made at least one day before 4. Same.- Promise.—The failure of the day for which the cause is dock- the seller to keep a mere promise, eted for trial, is reasonable and to be performed after the sale is comwithin the express power of such plete, is not a ground for resciscourt to adopt. The Jeff., Mad., & sion......
Ibid. Ind' pois R. R. Co. v. Avery...... 277 5. Same.- Fraud.- Diligence. The 2. Same.-Where it is clearly made party claiming to rescind a contract
to appear that some act performed of sale on account of fraud must act within the excluded time has ex- at once upon discovery of the fraud; cited such prejudice, or that such and he cannot postpone discovery sceling already existing was undis- by neglect to use ordinary diligence. covered by reasonable effort, the casc This rule must be strictly enforced presents such special circumstances where the law affords a complete as to exclude the application of such remedy in damages............... Ibid. rule intended for general conve- 6. Same.--Injury.-To authorize a renience.......
Ibid scission of a contract of sale on the
ground of fraud, there must be an S
injury shown as the result of that fraud....
7. Fraud.-- Agent.—On a sale of goods
it was agreed that the buyer should See Criminal Law, 2, 5, 19, 20. give to the seller, in payment, upon
delivery of the goods, notes of solSALE.
rent persons. A certain note so
given was not such as the contract See PLEADING, 12.
thus called for, and the buyer,know
ing this, fraudulently deceived the 1. Rescission.-Suit by the buyer to seller's agent, to whom he delivered
rescind an executed contract for the the note, knowing him to be such
sale of one-half of a portable mill. agent and knowing that the proTIeld, that an averment that the seller ceeds of the sale were to go to, and
never intended that the buyer should become the property of, the agent, derive any benefit from the mill, or who, on discovering the deceit, ofexercise any control over it, could fered to return the note to the buy
add no force to the complaint. cr and demanded of him other good Held, also, that the fact that after the notes. There being evidence of these
sale was completed the buyer was facts in a suit by the seller against not permitted to collect money or the buyer, the plaintiff bringing the examine the books, could not cntitle note into court and offering to rehim to rescind the contract. Sieve- turn it to the defendant; there was
king et al. v. Litzler..................13 a finding for the plaintiff in a cer2. Same.- Misreprescntation.- Valuc. tain sum, and that the defendant be
A misrepresentation by the seller as entitled to withdraw the note from to the value of the article offered for the files of the court and hold it as salo is not available to rescind the
his own. contract; but where a fact is stated Held, that the finding was correct. falsely which goes to make up the val- Kinney v. Blythe.......
8. Doceit.- Where a seller of goods written order directed to the seller,
knowingly makes falsc representa- for certain trees at specified prices.
See MORTGAGE, 2, 3.
...Ibid. lands having made default in the
Goods by Jury.—Upon the trial of money, the lands were resold. By
the default, a delinquent purchaser
Ibid. sale, but not after.
on a note. Answer, that the defend- governed by the latter law. Moor
See PLEADING, 26.
See JUSTIFICATION, 4.
had wholly failed to replace them. the State on Public Business.- Vol-
demurrer. Morehead v. Murray et State as a volunteer soldier or ofi-
...418 cer in the army of the United States
delivered to the buyer upon his ness within the meaning of the stat-
and the legislature is the exclusive SPECIAL FINDING.
judge of the reasonableness of the
time allowed within which the acSee PRACTICE, 28.
tion may be brought. De Moss et al.
v. Newton et al.......... ....219 SPECIAL VERDICT.
2. Same.- Minors.--No exception can
be claimed in favor of minors, unSee VERDICT.
less they are expressly mentioned
by the statute as excepted ...... Ibid. SPIRITUOUS LIQUORS. 3. Same.- Descent.-- Widow.-A man
died in 1854, seized in see simple of See CRIMINAL LAW, 2, 19, 20. certain real estate, Icaving surviving
him widow and brothers and sisSTATUTE.
ters, but no child, or father, or
mother. The widow took possession Sec EVIDENCE, 10, 11.
of the entire property. Suit for
partition, the plaintiffs claiming title Legislative Intepretation. It is not or- to an undivided interest in the land
dinarily thc function of the legisla- as brothers and sisters of the deture to interpret statutes; nor is ceased. such interpretation binding upon Held, that it was a sufficient answer, the courts as to a past transaction, that before the commencement of but as to matters occurring there- the action more than ninety days had after such legislation guides all the elapsed from the 9th of March, 1867, departments of the government. when section 3 of the act of March Dequindre et al. v. Williams ......444 4th, 1853, (Acts 1853, p. 55), was
repcaled and such limitation fixed STATUTE OF FRAUDS.
to the right of action under its pro
visions. (Acts 1867, p. 204)... Ibid. 1. Verbal Contract.— Partner.- A4. Absence from the State on' Public
partnership liability may become an Business.- Volunteer Soldier.-Abindividual debt against one member sence from the State as a volunteer of the firm, by contract, not in writ- soldier or officer in the army of the ing, between the partners, with the United States constitutes absence on consent of the creditor. Ilopkins v. public business within the meaning Carr
...260 of the statute which provides, that 2. Parol Lease. To Commence in "the time during which the defend
Futuro.-A parol lease of lands for ant is a non-resident of the State or the term of one year, to commence absent on public business shall not thirty days after the making of the be computed in any of the periods contract, is valid within the Statute of limitation” (2 G. & H. 161, sec. of Frauds; and the lessee may main- 216). Gregg v. Matlock...........373 tain an action against the lessor to recover possession according to the STATUTES CONSTRUED. terms of the lease. Huffman v. Starks......
474 See Court or Common PLEAS, 2; Cria3. Same.-It seems that the parties INAL LAW, 4, 5, 6, 9, 19; Descent,
to such a lease may have such rem- 4; ELECTION, 1; Evidence, 9; Fugiedies for violations of the contract TIVE FROM JUSTICE, 1; New Trial, as would appertain to violations of 1; OFFICE AND Officer, 3, 4, 5; Parother valid contracts. Stackberger v. TIES, 4; PartiTION OF LANDS, 1; Mosteller, 4 Ind. 461,questioned.Ibid. PRACTICE, 1; TURNPIKE, 1.
1. Trust.--Executed Use.-Section 13, will, done by design, purposely.
1 G. & H. 652, applies where the Murphy v. The State...... ..511
et al. v. Dodge........................ .41 accomplishing the particular thing
The act of 1867, increasing the such as would tend to produce the
See PRACTICE, 28.
See MORTGAGE, 1.
town had not power under the ninth ization of turnpike company; estoppel.
Sec Criminal Law, 2, 9, 19, 20.
See HiguwAY, 3.
Rules of court, abstracts. See DOHERTY
v. McWORKMAN, 383.
Sce HUSBAND AND WIFE, 1, 2.