64 Wis. 265, 25 N.W. 42
In December 1883 the plaintiff owned and possessed a small stone whose nature and value she did not know.1 On December 28 of that year she sold the stone to the defendants, who were partners in the jewelry business, for one dollar.2
The plaintiff had first shown the stone to defendant Samuel B. Boynton in September or October 1883 while having a pin mended.3 She told him she had been advised it was probably a topaz; he examined it briefly, offered one dollar for it as a specimen, and she initially declined.45 The stone was roughly the size of a canary bird's egg, nearly straw-colored, and pointed at one end.6
On December 28 the plaintiff returned to the store because she needed money, told Boynton she had brought back the topaz, and accepted the one dollar he had previously offered.7 Boynton had never seen an uncut diamond before the transaction and had no idea the stone was a diamond at the time of purchase.8
After the sale the stone was determined to be a rough diamond worth approximately seven hundred dollars.9 The plaintiff tendered one dollar and ten cents to the defendants and demanded return of the stone, which they refused.10
The plaintiff sued in the circuit court for Milwaukee county to recover possession of the stone.11 After hearing all the evidence the circuit judge directed a verdict for the defendants.12 The plaintiff's motion for a new trial on the minutes was denied, judgment was entered for the defendants, and she appealed to the Supreme Court of Wisconsin.13
Whether the plaintiff could rescind the sale of the stone and recover its possession after tendering the purchase price plus interest upon learning its true nature and value?14
The only reasons for rescinding a sale and revesting the title in the vendor so that he may maintain an action at law for the recovery of the possession against his vendee are two. First, the vendee was guilty of some fraud in procuring a sale to be made to him. Second, there was a mistake made by the vendor in delivering an article which was not the article sold. This last is not in reality a rescission of the sale made, as the thing delivered was not the thing sold, and no title ever passed to the vendee by such delivery.15
No. The title to the stone passed by the sale and delivery to the defendants.16
Upon the plaintiff's own evidence, there can be no just ground for alleging that she was induced to make the sale she did by any fraud or unfair dealings on the part of Mr. Boynton. Both were entirely ignorant at the time of the character of the stone and of its intrinsic value.17 The plaintiff had first shown the stone to defendant Samuel B. Boynton in September or October 1883 while having a pin mended. She told him she had been advised it was probably a topaz; he examined it briefly, offered one dollar for it as a specimen, and she initially declined. On December 28 the plaintiff returned to the store because she needed money, told Boynton she had brought back the topaz, and accepted the one dollar he had previously offered. Boynton had never seen an uncut diamond before the transaction and had no idea the stone was a diamond at the time of purchase. If she chose to sell it without further investigation as to its intrinsic value, she cannot repudiate the sale to a person guilty of no fraud or unfairness. This is because it is afterwards ascertained that she made a bad bargain.18
There is no pretense of any mistake as to the identity of the thing sold. It was produced by the plaintiff and exhibited to the vendee before the sale was made, and the thing sold was delivered to the vendee when the purchase price was paid.19 The tender of one dollar and ten cents and demand for return of the stone therefore did not revest title in the plaintiff.20
The plaintiff has failed entirely to make out a case either of fraud or mistake in the sale. She is not entitled to a rescission of such sale so as to recover the property sold in an action at law.21