delivered the opinion of the Court:
This was a suit in equity, brought by appellants in the court of common pleas of the city of Aurora, against appellee, for the purpose "of rescinding the purchase of a house and lot in that city. It is alleged that Sabin, at the time of the sale, represented that there were in existence papers guaranteeing the right to use water from a well on an adjoining lot to that sold to appellants, and that he would get the papers and place them in the hands of appellants. And that he further represented the papers provided that whenever the owner of the lot sold to them should sink a well on the lot, the former owner of both lots would furnish the stone necessary to wall and complete such well. The bill óharges that there was no such contract or papers, and that Sabin knew they did not exist, or that he fraudulently made the representation without any knowledge on the subject; that the stone for the well had been furnished to Sabin, which filled and terminated any contract that may have existed in relation thereto.
From an examination of the evidence we think it sustains the truth of the allegations. And had the contract remained unexecuted, or had this proceeding been instituted in a reasonable time, the complainants would have been entitled to the relief asked in the bill.
It is true, that the notes and mortgage given to secure the deferred payments on the purchase, were transferred before they were due, but all of the evidence considered in relation to the assignment, we think that it was not for value, and only to prevent a defense. We shall therefore consider the case as though Sabin was still the holder of these securities.
It appears that about the first of October, 1869, complainants and Sabin met at the office of Town and closed the trade, complainants paying $500 on the purchase, with the understanding that when they should in a few days pay the balance of a cash payment of two thousand dollars to the elder Town, and give their notes for $2100, secured by mortgage on the premises, then Town was to deliver to them the deed for the property. A week or ten days afterwards the remaining $1500 of the cash payment was made to Town, the notes and mortgage delivered, and complainants received the deed for the house and lot, and went into possession. Subsequently they ceased to occupy it themselves, and rented it to tenants, who occupied it until about May, 1870, when the tenants, being refused the privilege of getting water on the adjoining lot, refused to pay rent. Complainants thereupon offered to rescind the contract upon receiving back the $2000 paid on the property, and their notes and mortgage, and to pay rent for the time it was occupied, but Sabin declined, and offered to dig a well if they would give him possession for the purpose, but this they declined. Afterwards, on the 14th of June, 1870, they tendered him a deed for the premises and two hundred dollars for rent, and demanded a return of the purchase money and the notes and mortgage, but Sabin declined to do so, and complainants then filed this bill.
Having received the deed and gone into possession without taking the necessary steps to secure the use of water from the well on the adjoining lot, and having held the property for about seven months, it must be held that the application comes too late to have the sale set aside, and the deed, notes and mortgage canceled. The misrepresentation was not of that important character that requires an executed contract, acquiesced in for such a length of time, to be set aside. When Sabin •went out to get the papers, and did not return, their suspicions should have been aroused that he could not produce them, and living, as complainants did, on the lot, and obtaining water from the adjoining lot, had they regarded a want of a well of such vital importance to the property, it is strange that they, in view of the fact that Sabin had not produced the papers, did not inquire of the owner of the well on the adjoining lot whether there was existing such an agreement as Sabin had represented. They must have known they had but to make the inquiry and have obtained the information. Such delay and want of promptness on their part are, in the opinion of a majority of the court, strong evidence of a waiver of that part of the agreement, or, at least, as showing insufficient grounds to rescind the contract.
But conceding it was not, in the opinion of a majority of the court the failure to make good the promise of Sabin is not of such a material character as requires a rescission. Where fraud exists sufficient to rescind a contract, it should relate to the thing sold, and should be essential to its enjoyment. The evidence shows that a well can be sunk on the lot for a sum of money that is not large, and 'which could be sunk in a short time. But equity and good conscience require that Sabin should not be permitted to collect, nor should his assignee collect, the full sum due on these notes, and the full amount of the cost of sinking a well should have been enjoined. This Sabin regarded as just and obligatory on him, as he offered to sink a well on the lot. In this the decree was wrong.
, Again, the damages allowed for wrongfully suing out the injunction were too large, and can not be supported by the evidence. The statute only allows the assessment of damages sustained by reason of improperly suing out the injunction, and the damages must be confined alone to that ground. The charge for lawyer’s fees could only extend to the motion to dissolve the injunction. Had no injunction been granted, and this bill had progressed to a hearing as it did, we imagine no one would have conceived the idea that damages could be claimed on a dismissal of the bill, and simply because the damage contemplated by the statute had not been sustained. Then why allow as damages the expense of trying the cause. There would be no more reason for doing so in the one case than in the other. The evidence on the motion to assess damages goes to the entire expense of trying the case, and the court seems to have allowed them on the evidence The "amount allowed is within a few dollars of the amount the solicitor who tried the case swore it was worth to try.the case on the merits. We can see that the amount is certainly large, very large simply for a solicitor’s fee, for obtaining a dissolution of the injunction. There seems to be no evidence in the record as to the value of such services. The solicitor trying the case does not swear that he had charged that sum, even for trying the whole cause, or that appellees had agreed to pay that sum.
For the errors indicated the decree of the court below is reversed and the cause remanded.
Decree reversed.