their own account, and some are not; for if the contract is rescinded in part it must be in toto, and it is not difficult to see that such relief might thus in great measure miscarry under such conditions. Fry, Spec. Perf. § 696, and cases in notes. And there is a wide difference in the degree of merit which will enable a party to resist specific performance of a contract, and that which will entitle him to have it rescinded; and the attitude of the court towards the prayer for relief in such cases is for that reason not at all the same. Fry, Spec. Perf. § 233; Willanv. Willan, 16 Ves. 83; Savage v. BrocksO'pp, 18 Ves. 335; St. John v. Benedict, 6 Johns. eh. 111. But the defendants are not, for another reason already iudioated, entitled to a decree for rescission. The rule is that a party who seeks to rescind his contract on the ground that it was induced by the fraud of the other should take prompt action in repudiating the contract when the fraud is discovered, and should notify him of his purpose to disavow and disown it. Grymes v. Sanders, 93 U. S. 55; Ayres v. MitcheU,3 Smedes & M. 683; Lawrencev. Dale, 3 Johns. eh. 23; McKay v. Carrington, 1 McLean, 50. In the present case, while there is ample evidence tbat the defendants complained about the structure of the building almost from the laying of the foundations, there is no evidence sufficiently showing that they elected to rescind for fraud in the other party, and gave notice of such election. Indeed, there is nothing in the case, as it has been laid before me, to indicate that any claim for rescission was distinctly ll!ade until the filing of the answer and cross-bill. It follows that the cross-bill must also be dismissed. The defendants will recover costs in the main case, and the complainants should have costs in the suit upon the cross-bill. .
SMITH 11. GREEN
February 6, 1889.)
(Oirctlie OOU'1't, D. Minnesota.
To a bill for the cancellation of a quitclaim deed from complainant to defendant G., P. and J. were made parties defendant, the bill that they and each of them had made fraudulent representations for the purpose of procuring the execution of the deed. and a general confederating clause waS inserted. There was no averment that P. and J., or either of them, were agents or attorneys for G., or that G. held the title in whole or in part for their benefit. or that they had or expected any interest in the land conveyed; and no relief was prayed for as agalDst them. Held. that they.could not be required to answer.
In Equity. On demurrer to bill. Tbe bill of complaint states that from July 23, 1858, to June, 1886, the complainant was the owner of an indefeasible estate of inheritance in ·and to lot No.4 of the S. W. ! of section 28 of township 29 of range 24, containing 67.25 acres of land, situated in Hennepin county, in the state Of'Minnesota,and subject to a mortgage to the defendant John Green to
SMITH V. GREEN.
l:iecure the payment of 82,500 and interest thereon; and that between January 1, 1859, and January 1, 1862, Green made a pretended foreclosure sale thereof, which is averred to be defective, and that the same was subject to redemption on the 15th of June, 1886, at which time "the defendants, and each of them, came to (complainant's) place of residence at Burlington, in the state of Iowa, and represented and stated to him in each other's presence that the title of your orator in and to said land was utterly extinguished by the foreclosure of the mortgage above specified, and by the statute of limitations; and that your orator had not a shadow of a claim to said land and premises; and that any court would set aside your orator's claim in and to said land and premises in one year, but that it would cost about one hundred dollars to do S9, and that they would prefer to give to your orator said money, rather than spend it in court; and that the said John Green, who claims the land, was a poor old man, and they knew in justice your orator was not entitled to anything, but to enable them to make sales soon they would pay him for a quitclaim deed thereof the sum of five hundred dollars; and further stated that the land and all thereof was almost valueless, arid was an outlot partially covered with brush.» It is averred that de:. fendant Pumphrey had in other matters acted as complainant's attorney and agent, and was an old acquaintance, and introduced defendant Johnson as an attorney from Minneapolis, in whose statements your orator might place implicit confidence, and that, relying upon the saId statements and representations made by said defendants to him, and be:. lievingthe said statements to be true in every particular, he accepted $500 from them, and executed a quitclaim deed of said land and premises to the defendant John" Green. It is averred that the land is worth $50,000, and that the statements of defendants Johnson and Pumphrey were false, fraudulent, and untrue, and made with intent to deceive and defraud your orator, and that he was deceived and defrauded thereby. There is an allegation of tende! of money to Green, and demand for reconveyance. The general confederating clause is inserted, and specific interrogatories are required of defendants Pumphrey and Johnson, and the relief claimed is that the quitclaim deed to defendant Green be set aside. Defendants Pumphrey and Johnson interpose a demurrer "for the reasons (1) that the complainant has shown no title or interest in the laI).d in respect whereof these defendants or either of them ought to be compelled to answer or plead to said bill; (2) nOr does said bill show said defendants or either of them to have any interest whatever in and to any of the subject-matters or things alleged in said bill of complaint, and sought to be litigated in this action, in respect whereof Raid defendants ougnt to be compelled to answer or plead to said complaint. John B. &: W. H. Sanborn, for complainant. Hak &: Peck, for defendants.
NELSON, J., (after stating the facts as above.) There is no averment in the bill that the defendants Pumphrey and Johnson, or either of them, were the agents or attorneys of the defendant Green, to whom the quh..
daim deed. ran, or that Green was a trustee, and held the title for their benefit, 'in>who1e or in .part; and it does not appear that they have any interest whatever, or expect any, in the land conveyed,and no relief is prayed against them. The fact that fraudulent representations were made· by them: which influenced the· compll\-inant cannot implicate 'Green, unless they are shown to occupy such relation as to charge the fraud upon him. In all cases the bill must show that one who is made a party defendant is in some way liable to complainant's demand, or has an interest in the subject of the suit. An exception is made in the case of the agent or officer of a corporation. Mr. Pomeroy states the rule concisely, viz.: . "The generall'ule is well settled and admits of only one or two special exceptions which are necessary to prevent a failure of justice, that no person can properly be made a defendant in the suit for a discovery or compelled as Buch to disclose facts within Lis knowledge, unless he has an interest in the sUbject matter of the controversy in aid of which the discovery is asked.» 1 Porn. Eq.Jul'. § 199. . '. In a note numerous authorities from which the rule is are cited. where an attorney or agent has assisted his' principal in the accomplishIlj.eQt of a fraud,he may then be made a party defendant, and cOznpellEjd to discover the fact, .an,d relief must be prayed that he pay cOsts. >I1e is made a party, riot for the reason that everyone who assists another,in committing a wrong is answerfl.b1e for the injury susby the, aggrieved person, but as security for incurred in redressing thewrong. See 1 Dalliell, Ch. Pro 299, and cases cited in note. No such is presented by the demurrer, andjn settling the demurrer it is not necessary that defendants should answer denymg the confederating clause. Demurrer sustained. ..
NORRIS 11. ATLAS STEAM-SHIP
s. D. NW!
York. February 2,1889.)
In an action for injuries alleged to have been received from the falling of a maintopmast-stay on defendant's Yassel, causing plaintiff's hand to be caught in an exposed winch, evidence that immediately after the injury the defend. ant caused' the stay to be replaced and a guard to be put up at the winch, is . admissible to show the actual condition of the stay and winch at the time of the injury. . . ' I
LIMITATION OF ACTIONS-FOREIGN CORPORATIOlis-AJJSENCE OF DESIGNATED AGENT. .
Code Civil Proc. N. Y. § 482, provides that personal service of a summons upon a· foreign corporation may be made by delivering a copy to a person designated for that purpose; that Buch designation must specify a place within the state as the office and residence of the person designated; and that the "., 'desihrnationshall remain in force until the filing oia written revocation.Sectlon 401 provides that the statute of limitations shall uotrun in favor of non· .residents, but that its provisions do not apply while a designation made as pre· scrilied In section 432 remains in force. The defendant foreign cotporation