Straus v. Herman , 45 Ga. 222 ( 1872 )

McCay, Judge.

Under section 2614 of the Code, contracts of barter and exchange stand on the same footing with private sales, so far as the same principles can be applied to them. Suppose this had been a sale in all respects. Clearly, under the evidence, the purchaser of the silver had a right to tender back the same and sue for the value he paid for it. In this case he tendered back the silver and offered to rescind. In the trade the silver was taken at a fixed price per ounce. Its precise value, as estimated by the parties, is therefore ascertained. The defendant refuses to redeliver the pin in any event; says in fact that he has sold it and cannot deliver it. Clearly, therefore, the real wrong done to the plaintiff is to be measured by the value put upon the ware by the parties in the trade. He offers to restore that ware and asks its money value.

It is admitted that, under the proof, he might, had he offered the $27 as well as the ware, recover the whole value of the pin. But the defendant has disposed of the pin. He is unable to give it up. It was therefore useless to give him that option; since, by his own act, he had made it impossible for him to return the pin. It seems to us, that it would be sticking very closely in the bark to say that he ought to have offered to rescind entirely, that is, offered back the money also, and then sued for the value of the pin, allowing a credit for the money. That is in effect what has been done.

Did it appear that the defendant was willing or able to rescind at the time of the demand, there might be ground for saying that the plaintiff had not done enough, but the proof shows that he denied having the pin; so that he could not restore it, and there was therefore no use in offering him the $27 as well as the wares. Applying the rule in the ease of sales to this case, so far as the circumstances permit the application to be made, we think the present action is sustained by the proof. Here was a clear fraud on the defendant, he put it out of his power to rescind the trade. The plaintiff offered him the next best thing, viz: “Here is your plated ware, pay me what I took it at.” He refused also this.

We think, under the facts, he had a right to sue for the agreed price of the ware, and the Court ought to have allowed the jury to pass upon the proof.

Judgment reversed.