Party deceived may rescind contract, and so when the party is unable to perform, sec 282.

Contracts induced by fraud are voidable, sec 283.

Election must be in reasonable time, sec 284.

Party rescinding must do equity, sec 285.

Rescission not granted when by complainant's laches other party is exposed to loss, sec 286.

Party rescinding should give notice, sec

287. Ratification may be by conduct, sec 288. Mere lapse of time does not estop, sec .

289. Election is final and must be single, sec .

290. Rescission cannot be granted to impair rights of third parties, sec 291. Party without title cannot pass title,.

Sec 292

Rescission may be granted on failure in part performance, sec 293.

Sec 282

A party induced to enter into a bargain by another's fraud may either hold on to the bargain and sue for damages, or elect to rescind the bargain.1 - A contract, for instance, fraudulently obtained by colif there be a breach of warranty express or implied, or other ground of rescission, to retain the goods purchased, and on returning them may recover back the price paid. And whenever the vendor is unable to perform a substantial part of the contract, the purchaser may thus rescind. The remedy is not conditioned on fraud.1 - The same rule applies to purchases of real estate. Thus, to adopt illustrations given by Mr. Pollock,2 "if the owner of an estate sells it as unincumbered, concealing from the purchaser the existence of incumbrances, the purchaser may, if he thinks fit, call on him to perform his contract and redeem the incumbrances.3 If, also, promoters of a partnership undertaking induce persons to take part in it by untruly representing that a certain amount of capital has been already subscribed for, they will themselves be put on the list of contributories for that amount."4 - Rescission may be exercised as much by or against the personal representatives of the contracting parties as by or against the contracting parties themselves.1 - A party, also, who is sued for purchase money on a purchase he alleges to have been defrauded in making, may elect to affirm the sale, and may set off' his damages in abatement of the price.2 - To sustain a decree of a court of equity rescinding a contract, the proof should be strong and plain. The case is in this respect to be distinguished from a suit for a specific performance. Proof that would preclude a decree for the plaintiff in a suit for specific performance will not necessarily be sufficient to sustain a decree for the plaintiff' in a suit for rescission. The burden is on the plaintiff' in the latter case to make out a case of fraud or material mistake, and this case must be satisfactorily proved.3 - As we have already seen,4 a contract induced by honest misrepresentations may be rescinded, though no action would lie for deceit.

Party deceived may rescind contract or lusion with the other side, may be rescinded on proof of these facts;1 and so where a mother, over sixty years of age, was induced by her son to convey to a third person, who afterwards conveyed to the son, a ranch on an insufficient consideration;2 and so where a woman living a hundred miles from the place where she could obtain information as to the facts, was induced by her attorney, who was also the executor of a will under which she was entitled to a legacy of $4000, to sell that interest at a great sacrifice, it being represented to her falsely that her interest was likely to be lost;3 and so of an agreement between stockholders in a corporation to hold their stock in a common interest, which agreement' the defendant was induced to make by a fraudulent suppression of facts by the plaintiff.4 A vendor's false representations, also, that the property sold was free from incumbrance with a specific exception, was held to sustain a rescission of the contract when it appeared that there were other incumbrances to a large amount which materially reduced the value of the property.5 But when the representations complained of as false can be made good by the party seeking specific performance, then, there being no wrong done, specific performance will be decreed whenever the representations in question,are made good by the complainant.6 But the actual defect, in such case, must be made good; and when the falsity consists in a deficiency in the land to be conveyed, this cannot be cured by the offer of other land to the same extent elsewhere.7 On the other hand, a party injured may hold on to the contract and sue for damages caused by the deceit.8 - A buyer may refuse, may claim damage, and so when other party is unable to perform.

1 Supra, sec 232 et seq.; infra, sec 919; Udell v. Atherton, 7 H. & N. 181; Smith v. Richards, 13 Pet. 26; Penee v. Langdon, 99 U. S. 578; Daniel v. Mitchell, 1 Story, 172; Hough v. Richardson, 3 Story, 691; Doggett v. Emerson, 3 Story, 733; Foreman v. Bigelow, 4 Cliff. C. C. 508; Soper v. Stevens, 14 Me. 133; Wright v. Haskell, 45 Me. 489; Farris v. Ware, 60 Me. 482; Skinner v. Brigham, 126 Mass. 132; Addington v. Allen, 11 Wend. 375; reversing S. C, 7 Wend. 9; Perkins v. Partridge, 30 N. J. Eq. 82; Young v. Hughes, 32 N. J. Eq. 372; Crosland v. Hall, 33 N. J. Eq. 11; Bigler v. Flick-inger, 55 Penn. St. 279; Babcock v. Case, 61 Penn. St. 427; Short v. Stevenson, 63 Penn. St. 95; Clark v. Everhardt, 63 Penn. St. 347; Lowry v. McClane, 3 Grant, 333; Bird's App., 91 Penn. St. 68; Reed v. Peterson, 91 111. 288; Bradley v. Luce, 99 111. 234; Willcox v. Jackson, 51 Iowa, 208; Wampler v. Wampler, 30 Grat. 454; Walker v. Day, 8 Baxt. 77; Foster v. Gassett, 29 Ala. 393; Cooper v. Mcll-wain, 58 Ala. 296; Nelson v. Wood, 62 Ala. 175; Lindsey v. Veasy, 62 Ala. 421; Henrioid v. Neusbaumer, 69 Mo. 96; Poston v. Balch, 69 Mo. 115; Pen-darvis v. Gray, 41 Tex. 326; West v. Waddill, 33 Ark. 575; Myton v. Thur-low, 23 Kan. 212; see McShane v. Hazlehurst, 50 Md. 107. As to rescission for non-performance, see infra, sec 919; McLean v. Richardson, 127 Mass. 339.

1 Young v. Hughes, 32 N. J. Eq. 372.

2 Dalton v. Dalton, 14 Nev. 419; see Biglow v. Leabo, 8 Oregon, 147; see supra, sec 159.

3 Reed v. Peterson, 91 111. 288.

4 Havemeyer v. Havemeyer, N. Y. Ct. of App. 1881, noticed supra, sec 251; Hichens v. Congreve, 4 Russ. 562; Blake's case, 34 Beav. 639; Foss v. Harbottle, 2 Hare, 461; Rawlins v.

Wickham, 3 De G. & J. 304; Conkey v. Bond, 36 N. Y. 428; Getty v. Devlin, 54 id. 403; Getty v. Donelly, 9 Hun, 603; Place v. Minster, 65 N. Y. 102.

5 Kenney v. Hoffman, 31 Grat. 442; see supra, sec 259-60.

6 Pulsford v. Richards, 17 Beav. 95; see infra, sec 285.

7 Yost o. Shaffer, 3 Ind. 331. 8 Wald's Pollock, 507.; Bridge v. Batchelder, 9 Allen, 394; Simons v.

Oil Co., 61 Penn. St. 202; McElhenny's App., 61 Penn. St. 188; Rice's App., 79 Penn. St. 168; Armstead v. Hundley, 7 Grat. 52; Allin v. Millison, 72 111. 201; Thomas v. Coultas, 76 111. 493; see Schilling v. Short, 15 W. Va. 780. 1 Supra, sec 214; Benj. on Sales, 3d Am. ed. 436; Udell v. Atherton, 7 H. & N. 181; Clarke v. Dickson, E. B. & E. 148; Street v. Blay, 2 B. & Ad. 456; Soper v. Stevens, 14 Me. 133; Farris v. Ware, 60 Me. 482; Manahan v. Noyes, 52 N. H. 232; Poor v. Woodburn, 25 Vt. 234; Downer v. Smith, 32 Vt. 1; Gates v. Bliss, 43 Vt. 299; Perkins v. Bailey, 99 Mass. 61; Kinney v. Kier-nan, 2 Lans. 492; Stickter v. Guldin, 30 Penn. St. 114; Hartje v. Collins, 46 Penn. St. 268; Short v. Stevenson, 63 Penn. St. 95; Hoopes v. Strasburger, 37 Md. 390; Pierce v. Wilson, 34 Ala. 596; Foster v. Gressett, 29 Ala. 393; Blen v. Bear River Co., 20 Cal. 602; see notes to Chandelor v. Lopus, 1 Smith, L. C. 7th Am. ed. 299. That rescission .may be on defective performance, see Miller v. Phillips, 31 Penn. St. 218; North Am. Oil Co. v. Forsyth, 48 Penn. St. 291; Forsyth v. Oil Co., 53 Penn. St. 168. That where there is a warranty the warranty should be looked to if redress is sought on the ground of the falsity of the warranty, see supra, sec 214; Freyman v. Knecht, 78 Penn. St. 141. That on a failure of part performance there may be rescission, see infra, sec 293, 580. That performance must be in the mode stipulated in contract, and that if this be not done, there may be recissiou, see infra,'sec 869 et seq. But mere insolvency without fraud will not be ground for rescission; supra, sec 258, 262; Smith v. Smith, 21 Penn. St. 367; Rodman v. Thalheimer, 75 Penn. St. 232.

2 Wald's Pollock, 507.

3 Romilly, M. R., in Pulsford v. Richards, 17 Beav. 96; cf. Ungley v. Ungley, L. R. 5 Ch. D. 887.

4 Moore & De la Torre's case, L. R. 18 Eq. 661.