Henderson v. Wheaton

Citations

• 139 Ill. 581
• 28 N.E. 1100

Syllabus

<p>1. Contract of sale—construed. An instrument in writing recited a sale by the makers of fifty shares of the capital stock of a corporation, of $100 each, for the sum of $5000, the receipt whereof was acknowledged, upon the condition that if the vendee, at the expiration of three years, should elect to return said shares of stock, the vendors agreed to repay the vendee said sum of money, with interest, less any dividends he might have received on the stock, provided the vendee should notify the vendors of his intention to return such capital stock and claim repayment at least thirty days before the expiration of said term of three years: Held, that the instrument showed a present sale of shares of stock for $5000, upon the condition that the purchaser should notify the vendors of his intention to return the stock not less than thirty days before the expiration of three years.</p> <p>2. Same—terms of rescission—must be complied, with. Where a purchaser of capital stock of a corporation has, by the contract of sale, the right, within a given time, to return the stock upon thirty days’ notice before the expiration of such time, and receive back the purchase money, with interest, he may rescind within the time limited only by the doing of that which the condition provides shall be done by him.</p> <p>3. In such case the purchaser, before he can rescind and recover back the purchase money, must give the requisite notice of his intention to rescind, and, within the time limited for that purpose, return or offer to return the shares of capital stock purchased by him. Failing in this, the sale becomes absolute, and the purchaser can not recover under the contract.</p> <p>4. Pleading—declaration on contract—averment of performance of condition precedent. The rule is well settled, that where an act is to be performed by the plaintiff before the accruing of the defendant’s liability under his contract, the plaintiff must aver in his declaration, and prove, either his perform