Price v. Stout
Appellate Division of the Supreme Court of the State of New York
Appeal by the' defendant, James ÍT. Stout, from an interlocutory judgment of the Supreme Court in. favor of the-plaintiff, entered in the office of the clerk of the county of Hew York on the 3d day of March, 1903, upon- the decision of the court, rendered after a trial at. the ÜSTéw York Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint. ' The complaint alleges- that the following, written agreement' was made between the parties :■ “ Bruce Price…
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Appeal by the' defendant, James ÍT. Stout, from an interlocutory judgment of the Supreme Court in. favor of the-plaintiff, entered in the office of the clerk of the county of Hew York on the 3d day of March, 1903, upon- the decision of the court, rendered after a trial at. the ÜSTéw York Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint. ' The complaint alleges- that the following, written agreement' was made between the parties :■ “ Bruce Price and Jas. hT. Stout agree' herewith to pool all their funds for the purchase of the capital stock of the Security Trust…
1Opinion of the Court
O’Brien, J.:
The single question upon this appeal is whether the complaint is defective in not averring that the plaintiff offered to restore what he had received at the time he signed the receipts upon the ■accounting between the parties. The appellant relies upon the well-settled rule which, in the Encyclopaedia of Pleading and Practice (Vol. 18, p. 829), is thus stated: “In suits for the rescission and cancellation of contracts the court applies the familiar maxim ■of equity of almost universal application that he who seeks equity must do equity. The plaintiff will not be permitted to…
2Cases cited2 opinions
- Duff v. HutchinsonNew York Supreme Court · 1890
- Ballard v. . BeveridgeNew York Court of Appeals · 1902
3Cited by1 opinion
- Staiger v. KlitzAppellate Division of the Supreme Court of the State of New York · 1910