Doane v. Lockwood

Citations

• 115 Ill. 490
• 4 N.E. 500

Syllabus

<p>1. Rescission oe contract—for fraud—as, in the case of a sale and delivery of goods—rights of the parties, respectively. A sale and delivery of goods upon credit induced by fraudulent representations of the purchaser as to his financial ability, may be rescinded by the seller, within a reasonable time after discovery of the fraud, upon a return or offer to return the security taken for the price, and the goods reclaimed as against any one not an innocent purchaser for value.</p> <p>2. But where the vendor has received any valuable consideration or note of the purchaser upon a sale of goods, he can not rescind the contract for fraud without first returning or offering to return the consideration received, whatever it may be.</p> <p>3. Where a sale of goods is rescinded by the vendor for fraud on the part of the purchaser, it will be as though no sale had been made, and the original taking by the purchaser will be regarded as tortious and without the consent of the vendor, and the title and right of possession will at once be reinvested in him. But until the contract is rescinded, both the title and the right of possession will remain in the purchaser, and replevin by the vendor will be premature.</p> <p>4. Replevin—by vendor against fraudulent purchaser—whether retorno habendo awarded. Where;the vendor of goods brings replévin against a fraudulent perchaser, without having rescinded the sale by an offer to return the note given for the price, he must fail; but if, after suit brought and before trial, he offers to return the note, and thereby rescinds the sale, the court should not order a return of the property, but should only give judgment against the plaintiff for costs, and such damages, if any, as the defendant may have sustained.</p> <p>5. Practice—directing the jury to find for the defendant. Instructing the jury to find the issues for the defendant after the plaintiff has closed his evidence, is in effect the same thing as sustaining a demurrer to the evid