Phelps v. Mineral Springs Heights Co.

Dodge, J. This action is for the recovery of that with which plaintiff had parted upon the faith of a contract which, [255] by reason of its breach by tbe defendant, be claims that be bad a right to rescind, in toto, and bad done so. It is not a suit in equity to obtain a rescission, but a plain action at law to recover back tbe consideration paid. To maintain such action, it is essential that before it is commenced tbe rescission shall have been complete as to both parties. It is not enough that tbe plaintiff may have, by some decisive act, so declared bis own election as to whether tbe contract shall stand or bo rescinded that be cannot recede therefrom, which was the situation presented in Smeesters v. Schroeder, ante, p. 116, 101 N. W. 363. He must not only have exercised and. declared that election, but must have returned or offered to return to tbe other party that which he had received. Weed v. Page, 7 Wis. 503, 513; Hyslip v. French, 52 Wis. 513, 9 N. W. 605; Hoffman v. King, 70 Wis. 372, 381, 36 N. W. 25; Ludington v. Patton, 111 Wis. 208, 245, 86 N. W. 571; Bostwick v. Mut. L. Ins. Co. 116 Wis. 392, 439, 89 N. W. 538, 92 N. W. 246. To that rule there are certain exceptions under peculiar circumstances, which are illustrated in Gay v. D. M. Osborne & Co. 102 Wis. 641, 78 N. W. 1079; Gates v. Raymond, 106 Wis. 657, 82 N. W. 530; Roberts v. Francis, ante, p. 78, 100 N. W. 1076; Bostwick v. Mut. L. Ins. Co. supra — which are not rendered applicable by any of the facts in the present case. The evidence most favorable to plaintiff — His own testimony — discloses nothing whatever of any offer in any way to return or surrender to defendant the equitable rights -which he had received from the latter by force of the land contract and his payment of the purchase price. He testifies merely that, when asked why he did not call for his deed, he replied, “It was too late to accept a deed, and that I wanted my money back;” nor, when deed was actually tendered him, did he -offer any completed rescission, even when acting through and under advice of counsel. The response covering the rejection •of the deed was merely that his condition had been changed [256] by tbe'delay, and “be thinks that the proper thing would be-to return his money.” Neither does the evidence disclose any declaration or conduct on the part of the defendant constituting a notification that it would not accept a surrender of the-land contract if tendered, such as might have brought plaintiff within the exception applied in Roberts v. Francis, supra. We must therefore come to the conclusion reached by the-trial court, that up to the time of commencing suit — indeed,, to the time of trial — there had not been accomplished any complete rescission of the land contract; hence, that no implied contract to return the consideration had arisen to support an action at law for that money. By the Court. — Judgment affirmed.