Coolidge v. Brigham
Massachusetts Supreme Judicial Court
Assumpsit for goods sold and delivered, and for money had and received. There was also a count on a special agreement, to the following effect; viz. that the defendant, on the 28th of April, 1837, being indebted to the plaintiff in the sum of $306, for goods sold and delivered, in consideration that the plaintiff, at the request of the defendant, would accept and receive of the defendant, in payment for said goods, a promissory note made by George C. Whitney for $306, dated…
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Assumpsit for goods sold and delivered, and for money had and received. There was also a count on a special agreement, to the following effect; viz. that the defendant, on the 28th of April, 1837, being indebted to the plaintiff in the sum of $306, for goods sold and delivered, in consideration that the plaintiff, at the request of the defendant, would accept and receive of the defendant, in payment for said goods, a promissory note made by George C. Whitney for $306, dated February 16th, 1837, and payable in four months to George Whitney, or order, and indorsed by him and by D. M. Whitney,…
1Opinion of the CourtWilde, J.
The plaintiff founds his claim on two grounds In the first place, his counsel contend that he had a legal right *550to rescind the contract, set out in the special count, without restoring, or offering to restore, the note therein mentioned, to the defendant.
This right, we think very clearly, cannot be maintained. A contract cannot be rescinded by one of the parties for the default of the other, unless both of them can be put in the same state as before the contract. It cannot be rescinded as to one party, and remain in force as to the other. It must be rescinded in toto. . And if the party…
2Cases cited5 opinions
- Bradford v. ManlyMassachusetts Supreme Judicial Court · 1816
- Swett v. ColgateNew York Supreme Court · 1822
- Gallagher v. WaringNew York Supreme Court · 1832
- Beebee v. RobertNew York Supreme Court · 1834
- Higgins v. LivermoreMassachusetts Supreme Judicial Court · 1817
3Cited by1 opinion
- South Bend & Mishawaka Gas Co. v. JensenIndiana Supreme Court · 1914