Freer v. . Denton
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court in the third judicial department, affirming a judgment in favor of the plaintiff entered upon a verdict.
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Appeal from judgment of the General Term of the Supreme Court in the third judicial department, affirming a judgment in favor of the plaintiff entered upon a verdict. The complaint in this action alleged that the parties, on the 13th day of May, 1869, entered into a contract which was set forth, by which defendant agreed to sell and to convey certain premises to the plaintiff at a specified price per acre, wdiich plaintiff agreed to pay as follows : Ten dollars at the time of the execution of the contract, $800 July 1st, 1869, and the balance “ on or before the 1st day of April, 1870. ”…
1Opinion of the Court
Earl, C.
The plaintiff did not prove the frauds alleged in the complaint, and no question of fraud was submitted to the jury. If, therefore, this was, under the complaint, necessarily an action of fraud, the plaintiff- should have been defeated.
Upon the facts stated in the complaint, the plaintiff could recover the money paid by him upon either one of two theories: (1) He could avoid and repudiate the contract on the ground of the fraud alleged, and recover back the money, because it had been obtained from him by fraud, and the defendant had no right to retain it; or (2), he could rescind the…
2Cases cited4 opinions
- Byxbie v. . WoodNew York Court of Appeals · 1862
- Burtis v. . ThompsonNew York Court of Appeals · 1870
- Bass v. . ComstockNew York Court of Appeals · 1868
- Cobb v. . DowsNew York Court of Appeals · 1852
3Cited by19 opinions
- Fagan v. HookSupreme Court of Iowa · 1905
- Stanford v. McGillNorth Dakota Supreme Court · 1897
- Needham v. HalversonNorth Dakota Supreme Court · 1912
- Procter & Gamble Co. v. PowelsonCourt of Appeals for the Second Circuit · 1923
- Lauer v. RaymondAppellate Division of the Supreme Court of the State of New York · 1920
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