Mercer County State Bank v. Hayes
North Dakota Supreme Court
Appeal from tbe District Court of Mercer County, 8. L. Nuchols, J. Action to foreclose a mortgage. Judgment for defendants. Plaintiff appeals. Parties claiming’ a breach of warranty may rescind the contract, or they may stand on it and sue for damages. They cannot do both. Defendants here have elected to stand on their contract, but their defenses are inconsistent with their election.
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Appeal from tbe District Court of Mercer County, 8. L. Nuchols, J. Action to foreclose a mortgage. Judgment for defendants. Plaintiff appeals. Parties claiming’ a breach of warranty may rescind the contract, or they may stand on it and sue for damages. They cannot do both. Defendants here have elected to stand on their contract, but their defenses are inconsistent with their election. Nichols & S. Co. v. Dallier, 23 N. D. 532, 137 N. W. 570. A failure of consideration must be a total failure to be a- defense. A partial failure can avail only as a set-off, recoupment, or counterclaim. Neither…
1Opinion of the CourtBruce, J.
This is an action to foreclose a mortgage which was given to secure part of tbe purchase price of several city lots. The defense is that tbe grantor, who was tbe vice president of tbe plaintiff bank, was not the owner of said lots or any part thereof, and that tbe plaintiff bank bad full knowledge of this fact at tbe time that tbe mortgage was taken. Tbe answer, however, does not ask for a rescission of tbe contract of purchase, nor does it offer to restore the property, nor does it contain any allegation of any ejection, actual or threatened, nor of an assertion of any paramount title, nor…
2Cases cited23 opinions
- Pollard & Pickett v. DwightSupreme Court of the United States · 1808
- Abbott v. AllenNew York Court of Chancery · 1817
- Le Roy v. BeardSupreme Court of the United States · 1850
- McIndoe v. MormanWisconsin Supreme Court · 1870
- Harvey v. MorrisSupreme Court of Missouri · 1876
18 more not listed; retrieve them via the Exa API.
3Cited by3 opinions
- First State Bank v. RadkeNorth Dakota Supreme Court · 1924
- Schelske v. SmithSouth Dakota Supreme Court · 1929
- Grewer v. SchaferNorth Dakota Supreme Court · 1924