Thompson v. Rhodehamel

Citations

• 71 Wash. 24
• 127 P. 572
• 1912 Wash. LEXIS 683

Syllabus

<p>Sales — Rescission—Recovery oe Damages — Inconsistent Remedies — Election. The_ rescission of a sale, and the recovery of damages by way of recoupment, are inconsistent remedies, and cannot be maintained concurrently, but the party should be required to make an election.</p> <p>Election — Rescission and Recoupment — Presumptions'—Chattel Mortgages' — Foreclosure—Deeenses. In an action to foreclose a chattel mortgage, the property being in the possession of the plaintiff, in which the defendant pleads a rescission for fraud and asks damages by way of recoupment, in the absence of an election it will be assumed that the defendant relies primarily on the defense of rescission.</p> <p>Sales — Rescission—Diligence. Where defendant purchased a lodging house of plaintiff, and gave notes and a chattel mortgage upon representations that plaintiff had a valid lease of the building and upon his contract to give a lease for two years, and subsequently the owner gave notice that the plaintiff had no lease, the defendant is not estopped from rescinding by delay until eviction four months later, where the plaintiff denied the owner’s statement, and claimed at all times that he had a valid lease of the building, the facts being in doubt and disputed; since diligence is a relative question, and defendant had a right to rely on plaintiff’s assurance.</p>