Page:Harvard Law Review Volume 32.djvu/378

342 342 HARVARD LAW REVIEW right to rescind a contract for repudiation or substantial breach by the other contracting party is frequently stated to depend upon its exercise without undue delay.^^^ It has been pointed out, however, that in many of these cases the facts show that the in- action of the plaintiff may be interpreted as election.^^^ There is no more reason why delay, pure and simple, should furnish a de- fense here than where the basis of rescission is mutual mistake. Indeed less consideration should be shown the defendant who re- pudiates or breaks his promise than him who has innocently and inadvertently received what equitably belongs to another. Many jurisdictions, doubtless to promote the marketabiHty of realty, require an infant who has executed a deed of land to disafl&rm promptly on arriving at majority.^^^ Afl. equal number, with more a shareholder for calls upon his stock. In such cases the right of creditors and other stockholders to have the stock paid for requires a prompt disaffirmance of the sub- scription to stock; but inasmuch as in the case before the court, the rights of creditors and other stockholders were not involved, it was held enough to set up the fraud by way of defence when action was brought. . . ." " In the case of an executory contract, a refusal to perform any obligation thereunder and the defence of an action brought thereon are aU that the defrauded party can do by way of asserting his right to dis- affirm the contract, and unless his silence or delay has operated to the prejudice of the other party, he may first assert his right when his adversary first asserts his claim by action." ^^ Collins V. Tigner, 5 Pen. (Del.) 345 (1905); Mizell v. Watson, 57 Fla. in, 49 So. 149 (1909); Harden v. Lang, no Ga. 392, 395, 36 S. E. loo (1900); Carney v. Newberry, 24 111. 203 (i860); Axtel V. Chase, 77 Ind. 74 (1881), 83 Ind. 546 (1882); Mills v. Osa- watomie, 59 Kan. 463, 53 Pac. 470 (1898); World Pub. Co. v. Hull, 81 Mo. App. 277 (1899); Alfree Mfg. Co. v. Grape, 59 Neb. 777, 82 N. W. 11 (1900); Lawrence v. Dale, 3 Johns. Ch. (N. Y.) 23 (181 7); Caswell v. Black River Mfg. Co., 14 Johns (N. Y.) 453 (1817); North Dakota, Crv. Code (1913), § 5936; Oklahoma, Stats. (1910), § 986; Thomas v. McCue, 19 Wash. 287, 53 Pac. 161 (1898). 1^ "In most of them, either the plaintiff had received something from the defendant under the contract, or the contract was of such a nature that unless promptly informed the defendant would naturally proceed with his performance. Under such circum- stances ... an action may well be interpreted as an election not to seek restitution. Hence the statement that unless notice is promptly given restitution will not be en- forced." Woodward, Quasi Contracts, § 267. ^ Hastings v. DoUarhide, 24 Cal. 195 (1864); Kline v. Beebe, 6 Conn. 494 (1827); Wallace v. Lewis, 4 Harr. (Del.) 75 (1843); Nathans v. Arkwright, 66 Ga. 179 (1886); Bentley v. Greer, 100 Ga. 35, 27 S. E. 974 (1896); Hogan v. Utter, 95 S. E. 565 (N. C.) (1918); Cole V. Pennoyer, 14 111. 158 (1852); Blankenship v. Stout, 25 III. 132 (i860); Keil V. Healey, 84 III. 104 (1876); Tunison v. ChambUn, 88 III. 378 (1878); Hartman V. Kendall, 4 Ind. 403 (1853); Scranton v. Stewart, 52 Ind. 68 (1875); Shroyer v. Pittenger, 31 Ind. App. 158, 67 N. E. 475 (1903) (but see Sims ti. Bardoner, 87 Ind. 94 (1882)); Iowa, Code (1897), § 3189; Goodnow v. Empire Lumber Co., 31 Minn. 468, 18 N.W. 283 (1884); Wardp.Laverty, 19 Neb.429. 27N. W.393 (1886); O'Brien