Bisbee v. Ham , 47 Me. 543 ( 1860 )

The opinion of the Court was drawn up by

Tenney, C. J.

By the statute of 1851, c. 113, § 1, it is provided, that no action shall be maintained, in any Court in this State, on any demand or claim which has been settled, cancelled or discharged by the receipt of any sum of money, less than the amount due thereon. The same is incorporated substantially in the R. S. of 1857, c. 82, § 44. This is a change of the law as it stood previously. Bailey v. Day, 26 Maine, 88; White v. Jordan, 27 Maine, 370.

In the case presented, which is assumpsit, the defendants pleaded that they paid the sum of one hundred dollars on Eeb. 10,1855, before the commencement of the present action, in full satisfaction of all and every the promises mentioned in the declaration, &c. To this the plaintiffs reply that they were deceived and defrauded by the fraudulent representations and suppression of material facts by the defendants, and that the plaintiffs were induced, by reason of said fraud, to accept the said sum of one hundred dollars, in full satisfaction and discharge of the promises in their declaration mentioned, &c.

To this replication the defendants filed a demurrer, which was' joined by the plaintiffs.

The contract and the receipt of February 10, 1855, as confessed by the plaintiffs, aside from the frauds of the defendants alleged, were binding upon the parties, and were an effectual discharge of the claim.now in suit, under the law then existing.

This suit is upon the original cause of action, which was at the time of the transaction, on Feb. 10, 1855, supposed to be fully settled.

The case of Martin v. Roberts, 5 Cush., 126, which is relied upon by the counsel for the plaintiffs as being decisive of the case before us, was not one in which the plaintiff sought to rescind the contract of sale, or to reclaim the property sold by him to the defendant; but it is an action of assumpsit, on account annexed, to recover a balance of $90, on the price of two watches sold by him to the other party. The sale is treated as effectual, but payment was not, in fact, made in full, because a note, represented as perfectly good, was taken in part payment, when,'in fact, it was entirely worthless, and known at the time by the defendant to be so.

This action can be maintained only on the ground that the contract of a discharge is not binding on the plaintiffs, and they seek to rescind it, and treat it as never made. But the replication omits the allegation that the sum paid by the defendants, in discharge of the original contract, has been repaid to the defendants or tendered to them, and it is insisted by the plaintiffs’ counsel that this is unnecessary, but that they may treat this sum as payment pro tanto, and recover the balance as due on the original claim.

The authorities cited by the plaintiffs are inapplicable to the case, as sustaining their ground. But many of them, and those relied upon in defence, under the statute referred to, establish the doctrine that, in order to rescind a contract entered into, by the fraud of one of the parties thereto, the other party seeking a rescission must return, or tender the whole consideration received. Exceptions overruled.

Rice, Appleton, and Kent, JJ., concurred.