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Dissenting opinion, per GROVER, J.

him to show that he had given notice to Gill & Co. of his intention to rescind the contract, or that he had tendered to them the checks of Wood. His right to seize the liquor in the hands of the defendants was perfect without the performance of these acts. (Stevens v. Austin, 1 Met., 557; Nellis v. Bradley, 1 Sand., Superior Court, 560; Pearse v. Pettis, 47 Barb., 276.) The act of the plaintiff in demanding the liquor in question of the defendants and prosecuting them for its conversion, would show his election to rescind the entire contract on account of the fraud practiced by Gill & Co. The plaintiff could not rescind as to the ten barrels in question, leaving the contract of sale valid as to the residue, but must rescind the entire contract in toto, if at all. (Voorhees v. Earl, 2 Hill, 288; Wheaton v. Baker, 14 Barb., 594; Goelth v. White, 35 Barb., 76.) An election to rescind, when distinctly made, cancels and puts an end to the contract in toto, and restores the vendor to his original title as owner of the property, and leaves the parties in their original position as to the title. (Stevens v. Hyde, 32 Barb., 171.) It follows that a rescission of the contract would constitute a bar to an action brought by the vendor against the purchaser upon the contract of sale for the recovery of the price of the goods. That contract is terminated by the rescission, and lias no validity whatever thereafter. (Morris v. Rexford, 18 N. Y., 552.) Where the right of election exists and the party has once made his election he is concluded thereby, and can, thereafter, maintain no action inconsistent with the rights acquired by such election. (Id.) It follows that when the plaintiff exercised his right to rescind the contract on account of the fraud of Gill & Co. in the purchase, by asserting his title to the liquor in the hands of the defendant, he could not, thereafter, maintain an action against Gill & Co. upon the contract of sale for the recovery of the purchase price, although he could recover against them for the wrongful conversion of such quantity of the liquor as he had not obtained satisfaction for from third persons. This remedy would not have been inconsistent with the rescission of the

Dissenting opinion, per GROVER, J.

contract of sale, but in accordance with the rights of the plaintiff so acquired. When the plaintiff, after the commencement of the present action, commenced an action against Gill & Co., upon the contract of sale for the recovery of the price of the entire liquor sold, the latter might have set up the rescission of the contract as a defence to the action. (Morris v. Rexford, supra.) But this they did not do, but settled the action with the plaintiff by giving notes for a part of the purchase price, and by a further stipulation that they should retain the checks of Nat. Wood received upon the sale, with the right of collecting the same against him. The counsel for the appellant insists that this only settled the claim of the plaintiff against Gill & Co. for that part of the liquor sold which he was unable to find. But the action was for the purchase price of the entire liquor sold, based upon the contract of sale. The evidence conclusively proved that this action was settled, and not a claim for the conversion by Gill & Co. of any part of the liquor while the property of the plaintiff. Beside, the plaintiff under the agreement was to retain his right to the checks of Nat. Wood, received by him upon the sale of the property. What was this right? Title to the checks acquired under the contract of sale. Retaining this right was recognizing and acting upon the contract of sale as still subsisting and valid between the parties. It was competent for the parties to do this notwithstanding the suit against the defendant. This recognition and act by both vendor and purchaser made the contract valid and binding in respect of their rights. It gave to Gill & Co. a valid title, under the contract of sale, to all the liquor included in the purchase which they had not already disposed of. The plaintiff could not thereafter assert any title to such liquor on the ground of the rescission of the contract. This title was made valid under the original purchase from the time of the delivery to Gill & Co., and embraced not only such liquor as they had not sold, but all the liquor included in the purchase. It would scarcely be contended that, after this recognition by the plaintiff of the contract of sale as valid and subsisting, he

Dissenting opinion, per GROVER, J.

could have commenced an action and recovered therein for the conversion of any of the liquor upon the ground that he had not parted with the title. He had thereby incapacitated himself from claiming title upon the ground of rescission not only against Gill & Co. but as against all claiming title under them. But it is claimed by the counsel for the appellant that this difficulty was obviated by the proof given that it was not intended to settle for the liquor for which this action was brought against the defendants, and that the exclusion of this liquor from the writing was the result of a mistake. We have already seen that the plaintiff must rescind the contract in toto, or not at all. He could not claim title to the ten barrels of the defendants upon the ground of a rescission, and at the same time retain his right to prosecute Nat. Wood upon the checks, or the defendant upon the contract of sale. By doing the latter he precluded himself from doing the former. The fact that the settlement of the action against Gill & Co. was not to be deemed final until all the notes given to the plaintiff were paid does not affect the question. Gill & Co. had acquired the right to make it final, by payment. Three of the notes had matured and been paid. The last was not due at the time of the trial of this action at the circuit. This gave the plaintiff no right to reclaim any of the liquor as upon a rescission of the contract against Gill & Co. or any one else. The judge was right therefore in directing a verdict for the defendant, and the judgment of the General Term affirming the judgment entered thereon must be affirmed with costs.

For reversal, CHURCH, Ch. J., RAPALLO, PECKHAM and FOLGER, JJ. For affirmance, GROVER and ALLEN, JJ.

Judgment reversed and new trial ordered; costs to abide event.

Statement of case.

49 177 112 977

CHARLES H. PHILLIPS, Respondent, v. THE RENSSELAER AND

SARATOGA RAILROAD COMPANY, Appellant.

Plaintiff attempted to get upon one of defendant's cars, while slowly

passing a station where he had bought a ticket. The platform and steps of the car were full, so that he could only get upon the lower step. A jerk of the cars threw him off, but he held on to the iron rod and ran along by the car striving to recover his position upon the step, although the speed of the train was increasing, when he was struck by a platform near the track and injured. Held, there was such contributory negligence upon his part as justified a nonsuit; and that the facts that some one upon the train called out the station, that others were also getting upon the train, and that plaintiff himself and others had got on and off at this station when trains were in motion, did not justify plaintiff's persistence in getting on the car when thrown from the step, without regarding objects near the track. (CHURCH, Ch. J., dissenting.)

(Argued April 2d, 1872; decided April 9th, 1872.)

APPEAL from an order of the General Term of the Supreme Court in the third judicial department, setting aside a nonsuit and granting a new trial. (Reported below, 57 Barb., 642.)

The facts appear sufficiently in the opinion. Plaintiff was nonsuited, and exceptions were ordered to be heard at first instance at General Term.

John H. Reynolds for the appellant. Plaintiff's attempt to get on the train while in motion was an act of negligence, which, in fact, contributed to the injury; and he, for this reason, was not entitled to recover. (Lovett v. Salem and R. R. Co., 9 Allen, 557; Owens v. H. R. R. Co., 3 Bosworth, 374; Mettlertadt v. Ninth Ave. R. R. Co., 32 How. Pr. R., 428; Gennon v. N. Y. and Harlem R. R. Co., 1 Robt., 25.) To recover, he must show he was wholly without fault. (Gill v. J. S. C. Co., 12 Jur. N. S., 727.) The improper neglect of defendant's agents to stop the train did not justify plaintiff's act. (Dumont v. New Orleans and C. R. R. Co., 9 La. Ann. R., 441; R. R. Co. v. Aspen, 23 Penn. R., 147.) Defendant was not chargeable with knowledge of plaintiff's

SICKELS - VOL. IV.

23

Statement of case.

improper attempt to get upon the cars. N. B. R. R. Co., 6 Gray, 64.)

(Lucas v. T. and

Lyman Tremain for the respondent. The court erred in excluding evidence of plaintiff's knowledge of the fact that defendant's trains did not always stop and passengers got on while they were in motion. (Fuller v. Naugatuck R. R. Co., 21 Conn., 557.) In granting a nonsuit the court is bound to assume that, upon all controverted questions of fact, the truth is as claimed by the plaintiff. (Cook v. N. Y. C. R. R. Co., 3 Keyes, 476; People v. Roe, 1st Hill, 460, note a; Foot v. Wiswall, 14 J. R., 304.) Ordinary care is all the law requires. (3 Keyes, 479.) The act of getting on the cars when in motion is not, per se, negligence. (S. & R. on Neg., § 282.) The calling the names of the station is an invitation to the public, to passengers on board to leave, and to passengers at the station to enter the cars. (Whittaker v. The Manchester, Sheffield and Lincolnshire Railway Co., MS., decided June 7, 1870, in Com. Pleas of England.) Railroad companies are bound to keep in a safe condition the ordinary space in which passengers go to and from the trains. (Hulbert v.N. Y. Cent. R. R. Co., 40 N. Y., 146; McDonald v. Chicago and N. Y. W. R. R. Co., Am. Law Reg. N. S., 9th vol., No. 1, p. 10, and cases there cited; Burgess v. R. R. Co., 95 Eng. Com. Law, 923, unfenced hole near depot building; Martin v. R. R. Co., 81 id., 179, defective light in station grounds; Langmore v. R. R. Co., 19 C. B. [N. S.], 183; Sawyer v. R. R. Co., 27 Verm., 377; March v. R. R. Co., 9 Fost., 9, 39, 40.) Regulations as to place for entering cars are of no value, unless known to the traveler ; and if disregarded, with knowledge of the company, are deemed waived. McDonald v. 'C. and N. Y. Co., 5 Am. Law Reg. [N. S.], 24.) In the management and construction of their road they are bound to use the utmost care and skill to guard against danger to passengers. (McDonald's Case, supra; Cook v. N. Y. Central, 3 Keyes, 479; Bowen v. N. Y. Central, 18 N. Y., 408; Caldwell v. Murphy, 1 Duer, 233.) It must use

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