Gay v. Alter

lyr-R.. Justice Bradley, after stating the. case, delivered the opinion of the court.

It is contended by the appellant that the contract whereby Ames agreed to sell his judgment' for $8,000, was a synallagmatic contract, which he had a right to rescind if the agreement of the other -party as to the payment of the purchase-money was .not performed. This is undoubtedly the'law ,of Louisiana ; but that law also requires that, if a party to a contract wisnes to rescind it for such a cause, he must return to •the other party what he has received, so as to put him' in the same situation- he was in before. In the present-case,it. is not to be supposed that it was Ames’s duty to return the $3,000 which ha. received, because it was really received from Aymar, the debtor. But he was at least bound- to credit that amount^on the judgment, which would have-been a substantial iVffj.irn ; and in that case he would have a right to -maintain his judgment for,the whole balance, and Gay, his vendee, would have had the same right. But he did not do this: nor has Gay done it; but, On the contrary, -the latter has endeavored to pollect'the whole judgment without any deduction whatever. This, conduct is' totally inconsistent with the position taken! It shows, not a rescission of the contract, and a return or credit of the amount paid thereon, but a determination to regard the transaction as altogether void and the whole judgment still due.

We think that this position cannot be maintained- Decree affirmed.