Bowen v. Schuler

Citations

• 41 Ill. 192

Syllabus

<p>1. Instbuctions — need not be repeated. It is not error to refuse an instruction, though, proper in itself, when the principle embodied in it is embraced in an instruction already given at the instance of the same party.</p> <p>2. Saie—fraud—intent. A purchase of property, made with the intention not to pay for it, is fraudulent as between buyer and seller, and no title passes; and the fraudulent intent may be found from acts of the purchaser after the sale.</p> <p>8. Same—rescission for fraud. Where a seller elects to rescind a sale of goods on account of fraud on the part of the buyer, the seller must restore, or offer to restore the purchaser what he has paid on. the goods at the time of the purchase. So, on a sale where fraud has been practiced by the purchaser, entitling the seller to rescind, and a note has been given for the price of the goods, the seller must offer to return the note before he can rescind and recover the goods.</p> <p>4. Same—seller may elect to affirm or rescind. In such a case, the seller has the option to elect to affirm the sale, and might, no doubt, retain the money paid on the purchase and sue and recover damage for the deceit, or sue on the contract, or he may rescind and recover back the property, but must first place the purchaser in statu quo, or at least make the offer. If rescinded, it must be of the whole contract and not of a part. To authorize it would be to permit the vendor to make a new contract.</p>