World Publishing Co. v. Hull , 81 Mo. App. 277 ( 1899 )

ELLISON, J.

This -action is replevin wherein plaintiff seeks to recover the possession of a “twelve-horse-power electric motor.” Defendant is the sheriff of Buchanan county and claims possession of the property under a levy of a writ of attachment issued at the instance of the Graham Paper Company against the St. Joseph Times Printing & Publishing Company. The trial court directed a verdict for defendant..

The plaintiff’s claim of title is that it sold the motor to George C. Crowther individually, he, however, being president of the Times Printing Company with the understanding and agreement that Crowther would execute to it a note for the purchase price secured by chattel -mortgage on the motor. Crowther refused, or at least failed to do this after repeated demands that he should do so. Plaintiff did not take any steps to reclaim the property or disaffirm the sale until several months afterwards and after the levy of the attachment writ. The printing company took possession and exercised acts-of ownership over the property and claimed title thereto through said Crowther, who was its president.

The court’s peremptory instruction for defendant was based on the idea that while plaintiff may have had the right to disaffirm the sale and maintain replevin, yet the rescission should have been made upon the discovery of Orowther’s fraud on failing to execute the note and mortgage, and by-delaying to assert the right without excuse for a period of several months it lost the right and hence could not now be allowed to prevail over the plaintiffs in the attachment suit against the printing company. In this view the trial court was right. If one seeks to rescind a contract of sale of personal property he must exercise the right within a reasonable time after the happening of .the cause which gives him the right. Cahn v. Reid, 18 Mo. App. 115; Robbins v. Phillips, 68 Mo. 100; Johnson v. Whitman Agricultural Co., 20 Mo. App. 100; Tower v. Pauly, 51 Mo. App. 75; Viertel v. Smith, 55 Mo. App. 617; Steam Heating Co. v. Gas Fixture Co., 60 Mo. App. 149; Overton v. Brown, 63 Mo. App. 49; Johnson-Brinkman Com. Co. v. Railway, 52 Mo. App. 408; Taylor v. Short, 107 Mo. 385. And in instances where the delay is for such period as to be unquestionably without cause the court may so declare as a matter of law.

This view renders unnecessary any comment on other suggestions found in plaintiff’s brief. The judgment is affirmed.

All concur.