McDonald v. Hyde , 23 Wis. 487 ( 1868 )

DixoN, C. J.

It is alleged in the complaint that it was agreed between the plaintiffs and' the defendant Hyde, at the time their accounts and dealings under the contract were adjusted, and. the balance struck, and the notes given, that if anj' of the lands proved on examination not to be such as the contracts called for, or as they were represented by Hyde, .with reference to the quantity or quality of the timber growing thereon, or their location along or near the river, “ then they should be charged bach to Hyde? The complaint, however, contains no allegation that the plaintiffs, on discovering that the lands were not such as the contracts required, or as Hyde represented, charged them back, or returned or offered to return them, to him. This we deem to be a fatal defect in the complaint. Presuming, as we must until the contrary be shown, that the agreement to "charge back was a binding agreement, and not for any cause insufficient, the sale was a sale upon condition, of that class often calledlc contracts of sale or return.” In these the property passes to the purchaser subject to an option in him to return it within a fixed or a reasonable time, and if he fails to exercise this option by so returning it, the sale becomes absolute, and the price of the property may be recovered in an 'action to be brought for that purpose. 1 Parsons on Contracts (5th ed.), 539, and cases cited; Story on Sales, §§ 4PT and 417®. In such case, the purchaser cannot both keep the property and recover back the whole or any part of the price paid. If he would recover the price, or relieve himself from the payment of it, he must return or offer to return the property; which lasf is, in every such case, considered equivalent to an actual return. The retention of the property after an opportunity for examination, is regarded as an unconditional acceptance of it, and a ratification of the sale, by which the purchaser becomes holden for the full price.

The complaint being thus substantially defective, it follows that the order of the court below, sustaining the demurrer, must be affirmed.

By the Oourt.— Order affirmed.