Pettijohn v. Williams, 55 N.C. 356, 2 Jones Eq. 356 (1856)

June 1856 · Supreme Court of North Carolina

55 N.C. 356, 2 Jones Eq. 356

JOHN C. PETTIJOHN AND ANOTHER against HENRY WILLIAMS AND ANOTHER.

It is too late for a party to complain of a fraud in the quality of the thing sold, and seek for a rescission of the contract after he has used it for two years — has tested its qualities — has assigned his interest in it, and the thing itself has so deteriorated in value, that it cannot be restored in the same ¡slight and condition as when it was received by him.

This cause was before the Court upon an appeal from an interlocutory order of the Court of Equity of Martin County, and heard at the December Term, 1855, (ante 302.) The case is now brought up for a final hearing, and the facts are sufficiently stated in the report of that decision. «

liodmcm, for plaintiffs.

Smith, for defendants.

PbaRsoN, J.

When this case was before us at December Term, 1855, (ante 302,) a suggestion was made (for the consideration of counsel) that the plaintiff was too late in making his application, for the reasons which are there stated, and reference was made to the principle established by the case of McDowell v. Simms, Busb. Eq. 130. The question is now presented for a direct decision. There has been no amendment of the pleadings; no additional facts are brought out by the proofs, nor have we been favored with any argument of counsel to meet the difficulties which are there plainly pointed out as standing in the way of the plaintiffs. The consideration which we then bestowed upon the subject, inclined us to an opinion against the plaintiffs; the reflection which we have since bestowed upon it, satisfies us that the plaintiffs, at the time the bill was filed, had no equity, and that the principle established by McDowell v. Simms applies to our case.

Pee OueiaM. Bill dismissed.