
    Isaac Kingsley vs. Daniel Wallis, Jr.
    "What is, or is not, a reasonable time within which a party may rescind a contract, where no time is fixed by its terms, is a question of law.
    In the absence of all testimony, tending to show that so long a period was necessary, it was held, that a delay of two and an half months was beyond a reasonable time.
    Exceptions from the C. C. Pleas.
    
      Assumpsit on a note given on the 9th of April, 1834, for a deed of an interest in a patent right. The defendant proved, that when the bargain was made, he was to have “ the right to give up the trade, if he could not sell it, or if he was sick of his bargain,” but nothing was said about the time when it might be done. He also proved, that “ sometime in the month of June following, he offered to give up the bargain, and to return the deed to the plaintiff, and demanded his note.” Whitman C. J. ruled, that as there was no time fixed during which the defendant might give up the trade, he was hound to do it within a reasonable time; and that what was a reasonable time, was a question of law; and that in law the offer of the defendant to rescind the trade sometime in the month of June following, more than two months after the written contract, was not within a reasonable time. A. verdict was returned for the plaintiff, and the defendant excepted to the ruling of the Judge.
    
      Garnsey, for the defendant,
    contended, that this was a mixed question of law and fact, and should have been left to the jury, Instead of being decided by the Court; and cited 1 Stark. Ev. 415 and notes; Joy v. Sears, 9 Pick. 4; Hilton v. Shepherd, 6 East, 14; and Parker v. Palmer, 4 Barn. Aid. 387. He also argued, that the decision made by the Judge was wrong, as the defendant had the right to find out, whether he could sell the machine, before he rescinded the bargain; and that the time taken was sufficiently short to find, whether he could obtain a purchaser, or not.
    
      F. H. Allen, for the plaintiff,
    relied on Atwood v. Clark, 2 Greenl. 249, as conclusive in his favor.
   After a continuance, nisi, the opinion of the Court was prepared by

Weston C. J.

—We cannot perceive such a difference between the case before us, and that of Atwood v. Clark, 2 Greenl. 249, as to call for the application of a different rule from that, which was laid down in that case. If the defendant here reserved to himself the right to rescind the contract, if he could not sell the interest he purchased, or was sick of his bargain, he was bound to make his election to do so, within a reasonable time. The shortest period, from the testimony, within which he offered to rescind, was more than two months after the contract. And die Judge instructed the jury, as a matter of law, that it was not done within a reasonable time. In the absence of all testimony, tending to show that so long a period was necessary, to enable the defendant to make his election, we cannot say that the jury were erroneously instructed.

Exceptions overruled.  