Page:Federal Reporter, 1st Series, Volume 2.djvu/670

 CUMMINS V. L0D3. ' 663 �poriod, by the exercise of ordinary care and intelligence, it ■would be almost conclusive." 2 Parsons on Contracta, 781, 7b2, and cases cited. �The contract alleged in this case to have been fraudaient "was executed on thethirteenth 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 "that the land was net as represented, and that it must be made right. This, however, did not amount to a rescissiou 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 thia case, upon the discovery of the fraud, to notify the grantor -that 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 refusai 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 bankniptcy, and on the fifth day of October, 1878, the present complainant was elected their assignee. He must be presumed to bave inquired into their affairs and to bave ascertained the facts immediately upon bis appointment, or within a reasonable time thereafter, espe- cially as no allegation is found in bis 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 f act, 1 find for the •defendant, and there is decree acoordingly. ����