Lowe v. Maxcy

The plaintiff bought of the defendant certain real estate situated on Bridge Street in Gardiner. This consisted of a lot of land and a building on it. The purchase price was $2,000, of which $500 was paid in cash and the balance in notes secured by a mortgage on the property. After the consummation of the deal, the plaintiff repented of it. He claims that the building was out of repair, and it is uncontroverted that the defendant agreed to take the property back. On just what terms this reconveyance was made is one of the disputed issues in the case. The plaintiff contends that the defendant agreed to pay him back the purchase price; the defendant claims that under the terms of the agreement he was to cancel the mortgage notes in return for a reconveyance of the premises, and that the amount of cash to be repaid was to be left to his discretion. It is a fact that the notes were cancelled, that the property was reconveyed, and that the defendant gave to the plaintiff fifty dollars of the five hundred which had been paid. The plaintiff, seeking to recover the balance of the purchase price, has brought this action for money had and received. In his specifications he alleges fraud on the part of the defendant in making the sale; and he also sets forth that there was a rescission of the contract, and an agreement by the defendant to return the purchase price. There was a verdict for the plaintiff, and the case is before this court on the defendant’s motion for a new trial.

A careful reading of the record discloses no evidence to substantiate the charge of fraud. The plaintiff bought the property with his eyes open; there was no assertion by the defendant that it was in proper repair; and the purchase price was presumably paid for it as it was.

It is obvious that there was some arrangement by the parties for a rescission. What the terms of that were was an issue for the jury to decide. The testimony was conflicting, but we can not say that there is not sufficient evidence to sustain the verdict. Motion overruled.