Gates v. Bliss , 43 Vt. 299 ( 1871 )

The opinion of the court was delivered by

Redfield, J.

This is an action in assumpsit to recover “ boot” on the exchange of horses. The defendant proved that plaintiff warranted his horse “ sound and all right,” and that he was, in fact, and known to plaintiff to be, at the time, spavined and lame; that defendant within a reasonable time returned such horse to the plaintiff, made known to him that the horse was lame and unsound, and “ requested the plaintiff to trade back and call it no trade,” which plaintiff refused to do. The plaintiff was asked, on the stand, “ if defendant did not return the horse to him and .ask to rescind the trade so as to place both parties as they were before the trade,” and the plaintiff answered, “ He did, and I refused to do it.” The witness Olmstead testified that defendant returned the horse, told the plaintiff that the horse was spavined, and “ asked him what he was going to do about it,” and “ offered to change back horses again and call it no trade.” There seems no doubt, from the statement of facts in the exceptions, that defendant might rightfully rescind for fraud; and that would require him to return the property received to the plaintiff, and offer to rescind, and restore the parties to the condition before the trade ; and this should be done in the exercise of a right, and not as a matter of attempted negotiation.

We are not entirely agreed, as to the character of the conference between the parties as detailed in the exceptions, but a majority of the court think that the evidence did have a legal tendency to prove an offer to rescind, on the part of the defendant, and that, under proper instructions from the court, it was the province of the jury to determine the force and weight of such evidence. And from all the circumstances—the return of the horse, the complaint of the.spavin and lameness, the “ request to trade back and call it no trade,” the offer to “ trade back and have things as they were before the trade,” the “ asking to rescind,” and refusal of the plaintiff,—what did the parties understand ? What was the defendant’s purpose, meaning and intention, and what ought the plaintiff to have understood ? We think the evidence tended to prove that the defendant offered to return the horse to the plaintiff in rescisión of the contract, for the fraud, and that the evidence should have been submitted to the jury, under proper instructions, to determine whether the contract was, in fact, rescinded by the defendant.

For this reason the judgment of the county court is reversed, and the cause remanded.