Kennard v. Hathaway ( 1912 )

This is an action of replevin in which the plaintiff claimed the right of possession of a horse by virtue of a mortgage. The horse replevied was owned and mortgaged by the defendant, as security for notes given in part payment for a horse sold and delivered to the defendant by the plaintiff. The defendant claimed that the plaintiff fraudulently misrepresented the horse purchased by him and returned the horse to the plaintiff, thereby undertaking to rescind the trade. If the defendant had a right to rescind the trade, then it is evident that he was entitled to retain the possession of the horse he had mortgaged to the plaintiff. Whether he was justified in his act of recision depends entirely upon the issue of whether, in fact,, such false and fraudulent misrepresentation were made by the plaintiff, as to the character and qualities of the horse, and such reliance was placed upon them by the defendant, as warranted him in returning the horse and cancelling the contract of sale. Verdict for the defendant. Motion for new trial by plaintiff. Mtotion overruled.