Swazey v. Choate Manufacturing Co. , 48 N.H. 200 ( 1868 )

Bellows, J.

By the terms of the receipt, the defendants were to issue to the plaintiff the stock of the corporation to the amount of the three hundred dollars paid by Him, which, as the case finds, was three shares; and it may fairly be inferred that defendants were to deliver to the plaintiff the proper evidence of the issuing of that stock; that is, the usual certificates. On the refusal of the defendants to issue the stock, the plaintiff might maintain a suit on the contract and recover damages for the breach of it; or he might rescind the contract and recover back the money so paid; but if he elect to do the latter, he must give notice to the other party and demand the money. Weeks v. Robie, 42 N. H. 316; Judge of Probate v. Stone, 44 N. H. 593.

So, where defendant gave a receipt for money to be applied on anote, it was held that an action could not be maintained to recover back the money until defendant had been requested, and had refused, to apply the money. Sawyer, Admin'r, v. Tappan, 14 N. H. 352, 359.

If, then, under the circumstances, the plaintiff had the right to rescind the contract, he must have done it and demanded the money before suit; and whether he did or not, was one of the questions tried by the court, and that having been decided against the plaintiff is fatal to this suit.

We do not understand that this question of fact was transferred, but only the question, whether, as matter of law, the defendants were bound to deliver the stock to the plaintiff at some earlier period, without regard to a demand; and if so, whether plaintiff could maintain this suit; but, for the reasons before suggested,' we think an election to rescind and a demand were necessary, and therefore there must be

Judgment on the verdict for the defendants.