Stack v. Cavanaugh , 67 N.H. 149 ( 1891 )

The former decision in this case, it is claimed, was based upon the erroneous assumption of fact that the plaintiff had rescinded the contract, when in fact he only proposed to rescind, and, instead of rescinding, ratified the contract by leaving the horse with the defendants to be sold. It is further claimed, that, when repayment of the purchase-money was requested, rescission had become impossible, because, the horse having been sold on the plaintiff's account, the property could not be returned in specie.

Whether what took place when the plaintiff returned the horse was a rescission, a proposition for a rescission, or a ratification of the contract of purchase, it is not necessary to consider. The plaintiff's right of rescission remained during his minority, and was not defeated by the defendants' refusal to refund the purchase-money, nor by his request to them to do the best they could with the property. The contract and subsequent alleged ratification were voidable at his election, and were repudiated when he brought this suit. The bringing of the suit was an election to rescind. Eaton v. Hill, 50 N.H. 235, 241.

The fact that the horse had been injured by the plaintiff's unskilful driving, did not, as shown in the former opinion, deprive the plaintiff of his right to return it. He derived no benefit from the contract. It was not necessary to renew his offer to return the property. It went into the defendants' possession when the plaintiff first attempted to rescind, and was sold by them. The money received by them from the sale stood in place of the horse. The presumption is that they acted in good faith in the sale, and got the most they could for the property. If they did not, they are in no position to complain.

If the plaintiff's mother was acting in his behalf when she requested the return of the purchase-money, what was then done was equivalent to a rescission, and the result is the same.

The defendants are not, as contended, entitled to judgment upon the ground that they had no reason to suppose the plaintiff was an infant. He did not affirm himself to be of full age, and there is nothing in the case that shows that at the time he made the purchase he intended to elude the contract. The case in this respect differs from Fitts v. Hall, 9 N.H. 441 (see p. 449).

Judgment for the plaintiff.

CLARK, J., did not sit: the others concurred.