[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 69
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 70 This action was brought to recover back the purchase-price of two railroad bonds at $1,800, which were purchased upon certain representations and with the option to return if the purchaser became sick of them, in which case the defendant was to repay the purchase-money.
The plaintiff, soon after the purchase, sold them to two ladies, one to each, and the evidence tends to show that he made the investment for them. When he sold them he stated to the ladies the representations of the defendant, and gave *Page 71 them the same option, which they exercised, after which the plaintiff offered to return the bonds. The court charged that the transaction with the ladies did not impair the right of the plaintiff to return the bonds, which is strenuously insisted to be error. We have carefully examined the elaborate brief of the learned counsel for the defendant upon this point and the authorities cited by him, and feel constrained to disagree with him and concur with the General Term affirming the decision at Circuit. If the sale had been absolute the plaintiff might be deemed to have exercised his option not to return the property upon the ground that the act was inconsistent with the continuance of the option. But the sale was not absolute. The same right was expressly reserved and continued. There is some force in the argument that the defendant's agreement to receive back the bonds and return the purchase-money was limited to the contingency only of the plaintiff's becoming "sick" of the bonds, and not of third persons who might purchase from him. But there was no restriction in the agreement. It was not made material how or for what reason the plaintiff became dissatisfied, or by what influences. He may have acted upon the advice of a friend or submitted to the opinion of a third person. His dissatisfaction, however produced, gave him the unqualified right to return. The defendant had no election to exercise, and was not injured in a legal sense by the transaction with the ladies. When the plaintiff offered to return the bonds, he was dissatisfied with them. He had this option, and the transaction with the ladies was not an act inconsistent with the exercise of this right. He did not, by that transaction, place it beyond his power to return them, as such a return was contemplated by the terms of the transaction itself. We have not been referred to any authority adverse to these views.
We concur, also, with the court below, that the question of time was not distinctly presented except on a motion for nonsuit. The nonsuit was properly denied on that ground, because there was evidence tending to show that the delay was at the request of the defendant, and the case does not *Page 72 show that the point was afterwards presented. It is said that other propositions charged involved the question of time. If this is true, it was only indirectly and inferentially. The court charged, it is true, that if the contract was as alleged the plaintiff was entitled to recover, but this proposition was intended only to decide the nature and legal character of the agreement. So in respect to the charge that the transaction with the ladies was immaterial. This was only deciding that the fact of such a sale in its character did not preclude the plaintiff from returning the bonds. In order to predicate error the point in controversy should be distinctly presented to the mind of the judge and a decision made thereon. This was not done. If it had been it is impossible to determine what the decision would have been. Nor was there any request to submit the question to the jury. The delay was considerable and perhaps unreasonable, but the effect of the conversation between the parties soon after the purchase might be regarded as an excuse, or justification for not returning the bonds earlier and if a question had been made the fact whether this conversation took place, might and probably would have been submitted to the jury. It is not allowable for a party thus to lie by and then allege error upon a decision not necessarily intended to involve the point. Under all the circumstances developed on the trial the case does not show conclusively as a matter of law that the time was unreasonable, and if it did, the point would not be available without an exception.
The plaintiff was not bound to prove damages. It was a part of the agreement that the defendant would refund the money paid for the bonds, and the authorities are quite decisive, that the party has a right to demand the consideration. It may be that when the seller refuses to accept a return, the purchaser may dispose of the property and bring his action for the deficiency, but even if he has that right he may bring the action for the purchase-money as upon a rescission of a contract. The decision in 2 Johnson's Cases, 253, was to this effect; and the observations of the court illustrating the point *Page 73 decided could not have been intended to lay down a different doctrine. The receipt of the amount of two coupons was, from the nature of the property, contemplated by the parties and was properly allowed by the General Term, but such receipt would not affect the right of recovery. Nor was the amount the plaintiff sold the bonds for, or that he paid on receiving them back, of any moment. It had no bearing upon the right of the plaintiff under his contract with the defendant. He was obliged to account for the amount he received on the coupons as for the contemplated use of the property, but any profit in the transaction, if there was any, stands upon a different footing and cannot be regarded as any part of the property to be returned. (70 Penn., 56; 4 Comst., 249.)
The judgment must be affirmed.
All concur.
Judgment affirmed.