ant should sell and convey to plaintiff said house and lots, and the merchandise aforesaid, and that the plaintiff should pay for the same as follows: First, to deliver up and cancel said five promissory notes; second, to deed to defendant said 80 acres of land, and free the same from encumbrance; third, to pay him $850 in cash; fourth, to assume the liabilities against said store, amounting to some $800 or $900. After averring these facts, the petition alleges that "defendant bas failed and refused to carry out his bargain with the plaintiff, and complete said bargain so entered into on said July 11, 1879, although requested to do so. To this petition the defendant demurs, on the ground that the same does not show that the plaintiff has performed, or offered to perform, the said contract on his part. The covenants in the contract, as set out in the petition, are mutual covenants, and go to the whole consideration on both sides. They are mutual conditions, and neither party can recover against the other for their breach, except upon averring performance, or readiness to perform, on his own part. The defendant agreed to conV'ey to plaintiff a house and lot, al;ld the merchandise mentioned in the petition, and the plaintiff agreed in consideration thereof, and at the time of such conveyance, to make the payments named. In such a case I am clear that the plaintiff cannot main. tain an action without showing performance on his part or an offer to perform. 2 Parsons on Contracts, 532. note r. The demurrer to petition is sustained.
,CUMMINS, ASSIgnee, etc., v. LaDS and others.
(Circuit Oourt, D. Iowa. 1t'Iay, 1880.)
CONTRACT FRAUD -
Inexcusable delay will operate u
a ratification of a fraudulent contract.
MCCRARY, C. J., (orally.) This is a bill in equity filed by complainant, as assignee of the firm of Thornburg & Van Leuven, bankrupts, to set aside the conveyance of a certain tract of land, and cancel a contract, on the ground of fraud. The parties who are represented by the plaintiff, as assignee, bought from the respondents an SO-acre tract of land without seeing it, and upon the faith of certain representations made by respondents. It is alleged that these representations were false and fraudulent, and the prayer is for a decree to set aside the contract and restore the parties to their original rights. Upon the question of fact involved in the case, as to whether the representations made by respondents concerning th" quality and character of the land were intentionally talse and fraudulent, there is a serious conflict in the testimony, I;tnd upon some of the most material points it would seem to be almost evenly balanced. It is, however, in my judgment, not necessary to decida that question, since the case may well be disposed of upon a question of law which arises upon the record. The claim of the plaintiff here is that the contract should be rescinded, and set aside, on account of fraud. By the terms of the contract the said bankrupts were to transfer to respondents a certain stock of hardware, and respondents were to convey to the bankrupts an 80·acre tract of land in Tama county, Iowa. The contract was executed. The transfer of the stock of hardware was made. A deed to the real estate was executed, acknowledged l1nd delivered. It is a well-settled rule of law that where the right to rescind a contract springs from discovered fraud, the party defrauded must rescind as soon as circumstances permit; or, in other words, at once, on discovery of the fraud. He is not bound to rescind, and any delay, especially if it be injurious to the other party, amounts to a waiver of his right. "The mere lapse of time," says Mr. Parsons, "if it be considerable, goes far to establish a waiver of this right, and if it be connected with an obvious ability on the part of the defrauded person to discover the fraud at a much earlier
OUlIIlIIINS V. LODS.
poriod, by the exercise of ordinary care and intelligence, it would be almost conclusive." 9 Parsons on Contracts, 781, 71:)2, and cases cited. The contract alleged in this 'case to have been fraudulent was executed on the thirteenth day of August, 1878. It is ad. mitted in testimony that the parties purchasing, (the firm of Thornburg & Van Leuven,) now represented by the assignee, were fully advised of the condition of the land in about eight -or ten days after the date of the contract, which would be as .early as the twenty-first or twenty-third of August, 1878. They complained to one of the respondents, and said to him' ihat the land was not as represented, and that' it must be made right. This, however, did not amount to a rescission of the contract. It is not necessary to determine precisely what is required to constitute a rescission, but the least that can be said is that it was the duty of the bankrupts in this case, upon the discovery of the fraud, to notify the grantor ihat they had elected to rescind, demand a return of the stock of hardware which had been delivered to the grantor, and tender a reconveyance to him of the 80 acres of land. Whether it was necessary to institute legal proceedings, upon the refusal of respondents to recognize such rescission, it is not neccessary to decide. It is enough to say that the evi. dence here does not show any rescission. In less than a week after the said Thornburg & Van Leuven were advised of the alleged fraud they went into bankruptcy, and on the fifth day of October, 1878, the present complainant was elected their .assignee. He must be presumed to have inquired into their affairs and to have ascertained the facts immediately upon his appointment, or within a reasonable time thereafter, espe. cially as no allegation is found in his petition that he did not discover the fraud until a later period. He did not, however, institute this proceeding until the third day of April, 1879, about six months from the time of his appointment. I am clearly of the opinion that the evidence shows such delay as amounted to a ratification of the contract. On that ground, without deciding the question of fact, 1 find for the .defendant, and there is decree accordingly.
PATTY and others.
(District Court, E. D. WiiC()nsin. --,1880.)
DUPLICITY - CmCULARS CONCERNING LO'l'TEHTES - REV. ST. § 3894.-An indictment is not bad for duplicity which charges that on a certain day a certain number of circulars concerning a certain lottery were dcposited at the post-office to be sent by mail. S.urE-8AME-8AME-"-SAME.-An indictment is bad for duplicity which charges that on a certain day, and on each sccular day between that day and another day named, and on each secular day between that time and another subsequent time mentioned there were deposited in the post,office a certain number of circulars concerning a certain lottery for the purpose of being sent by mail. BAME-SAME-SURPLUSAGE.-Where two distin ct offences are each set out in adequate terms, an indictment is bad for duplicity, and neither allegation can be rejected as surplusage.
G. W. Hazelton, for United States. L. S. Dixon, for defendants. DYER, D. J., (orally.) This is an indictment under section 8894, Revised Statutes, which provides that "no letter or circular concerning illegal lotteries, so-called gift concerts, at other similar enterprises offenng prizes, or concerning schemes devised and intended to deceive and defraud the public, for the purpose of obtaining money under false pretences, shall be carried in tlie mail. Any person who shall knowingly deposit or send anything to be conveyed by mail, in violation of this section, shall be punishable" as the statute prescribes. The indictment contains three counts. The first count sets out at length the organization of a lottery scheme, by which the defendants undertook to dispose of a hotel at Fond du Lac, known as the Patty House, and charges that on the first day of November, 1879, and on each and every secular day in said month of November, and on each and every secular day between the thirtieth day of said month of November and the tenth day of February, in the year 1880, the defendants did knowingly, wrongfully and unlawfully' deposit in the postoffice of the United States, at the city of Fond du Lac, and did send to the said post-office, to be conveyed by mail,