Shores, Durham & Co. v. Barker

Citations

• 88 Ill. 212

Syllabus

<p>1. Contract—rescinding for misunderstanding. Where an accepted order was transferred to a defendant under a supposed contract, as to which there was a mutual misunderstanding of its terms, the defendant understanding that he was to pay the debt the owner owed a third person, then holding the order as collateral security, and give the owner a receipt for such debt, and also' for what the owner owed the defendant, and to pay him the balance of the order when collected, while the owner understood the defendant was to give his note for such balance, payable absolutely, and the defendant paid the debt of the holder, and left with him a due bill for the owner, payable when the order was collected, which was refused, it was held, that the owner of the order could not recover from the defendant the balance of the order, without first ordering the return of the money paid and the due bill, and rescinding the transaction.</p> <p>2. Same—right to rescind. If a party wishes to rescind a contract where there is a mutual misunderstanding of its terms, and under which the other party has paid money to his creditor, and left with such creditor his due bill to him, he must first direct the creditor receiving the money and holding the due bill to return the same.</p> <p>3. Agency—whether person is an agent. Where the holder of an order assigned to him as collateral security, communicates a proposition to the owner from another creditor of the owner, to take the order and pay the holder’s debt., and the proposition is accepted, and the holder transfers the order, taking a due bill for the owner for the balance due him, after deducting both debts, but conditional, this will not make the holder so acting the agent of the owner of the order, so as to bind him by his act in accepting a conditional obligation. Such person is no-more agent for one party than the other, and will be considered as acting for himself as much as for either of the other parties.</p>