The opinion of the Court was drawn up by
Emery J.The plaintiff contends, that because the jury found there was some value in the land for which the bond was given, the defendants were bound to return the bond in a reasonable time to the plaintiff, and should have been prompt in their action ; that as the bond was given in October 9, 1835, and not returned to the clerk until the trial in 'November, 1837, it was too late, especially as the plaintiff did not consent to that course. Generally speaking, if one would rescind a contract of sale on the ground of misrepresentation or fraud, he should return seasonably the article in which he has been deceived. We consider that in this case every thing was executory. The plaintiff still holds the land. Now when the suit is upon the notes it is proper to make defence against it on the ground which has been assumed. And so far as we can trust to the verdict of the jury, the notes were obtained by false representation of the situation and quality of the land, for the conveyance of which the bond was given. We have had occasion to *334express our views on this subject, in the case of Robinson v. Heard, in the county of Cumberland, in 15 Maine Rep. 296, to which we refer. And w*e are satisfied, that in such a state of facts as the jury have pronounced to be fraudulent representations, we cannot see a reason for setting aside their, verdict. The credit to be given to the witnesses was all resting with the jury. The Judge was not called upon to express any opinion whether the defendants had exercised ordinary prudence in, assenting to the contract. And though the circumstances disclosed, seem to present a fair ground of argument, that the defendants were not the victims of a sudden impulse, we do not perceive any evidence that the plaintiff was not well disposed to keep up the illusion.
The jury seem to have been deeply impressed with the belief, that notwithstanding the land was of some value, that the fraudulent representations made by the plaintiff, relieved the defendants from the responsibility of paying their notes. What the value was, is not found. But we cannot say, the verdict is against the weight of evidence, or with such facts as the jury have pronounced upon, that it is against law. The fraud vitiates the whole.
The exceptions are therefore overruled.