Sec 284

A party who claims to be defrauded in a contract must exercise his election to rescind within a reasonable time. By letting his claims lie dormant after he has notice of the fraud, he may be estopped from contesting the contract, so far, at least, as bona fide third parties are concerned, or when the other party has been misled by this supine acquiescence.3 For a party imposed upon to delay unnecessarily his repudiation of the contract by which he was defrauded is evidence from which a ratification may be inferred;4 though mere length of time does not by itself give ground for this inference, without proof of supine acquiescence.5 There must have been knowledge of the fraud to make lapse of time by itself a bar.6 And knowlmore, 72 Penn. St. 427; cited Wald's Pollock, 409; and see other cases cited supra, sec 183; infra. sec 291.

Election must be in reasonable time.

1 Supra, sec 183 et seq. As to distinction between void and voidable, see further supra, sec 28; infra, sec 291.

2 Infra, sec 288.

3 Infra, sec 289; Central R. R. v. Kish, L. R. 2 H. L. 99; Heymann v. R. R., L. R. 7 Eq. 154; Bwlch-y-Plwm Lead Co. p. Baynes, L. R. 2 Ex. 326; Clough v. R. R., L. R. 7 Ex. 34; Morrison v. Ins. Co., L. R. 8 Ex. 203; Upton p. Trebilcock, 91 U. S. 45; Pence v. Langdon, 99 XL S. 578; Weeks v. Robie, 42 N. H. 316; Manahan v. Noyes, 52 N. H, 232; Matteson v. Holt, 45 Vt. 336; Whitcomb v. Demo, 52 Vt. 382; Bassett v. Brown, 105 Mass. 551; Degraw v. Elmore, 50 N. Y. 1; Hammond v. Pennock, 61 N. Y. 145; Williamson v. R. R., 29 N. J. Eq. 311; Kollock v. Knowlton, 1 Weekly Notes, 514; Learning v. Wise, 73 Penn. St. 173; Morgan v. McKee, 77 Penn. St. 228; Hunt v. Stuart, 53 Md. 225; Heald v. Wright, 75 111. 17; Gatling v. Newell. 9 Ind. 572; Watson Coal Co. v. Casteel, 68 Ind. 476; Hall v. Ful-lerton, 69 111. 448; Barfield v. Price, 40 Cal. 535; Memphis, etc. R. R. v. Neighbors, 51 Miss. 412; Crutch-field v. Stanfield, Sup. Ct. Tex. 1881; see infra, sec 752.

4 Bright v. Legerton, 2 D. F. J. 606.

5 Charter v. Trevelyan, 11 Cl. & F. 714.

6 Infra, sec 289; Lindsay Petrol. Co. v. Hurd, L. R. 5 P. C. 221; Wright v. Vanderplank, 8 D. M. G-. 133; Campbell v. Fleming, 1 Ad. & El. 40; Veazie v. Williams, 8 How. 134; edge of facts of which the party was bound to take notice will be inferred.1 But "acquiescence and waiver are always questions of fact. There can be neither without knowledge." Nor can the wrong done in such cases exact perfect vigilance on the part of the other contracting party. Ordinary business sagacity is all that is required.2 The question of reasonable time is one of mixed law and fact.3.

Sec 285

A party seeking to rescind must, as an ordinary prerequisite to recover, offer to return before trial whatever he may have obtained from the contract he thus applies to repudiate;4 and in cases of conveyance of land, must tender a reconveyance.5 The party from whom the relief is claimed must be put, as far as is possible, in the position he was in before the transaction complained of.6

Party rescinding must do equity.

Grymes v. Sanders, 93 U. S. 55; Mat-tegon v. Holt, 45 Vt. 336; Boughton v. Standish, 48 Vt. 594; Baker v. Lever, 67 N. Y. 304.

1 Upton v. Trebilcock, 91 U. S. 45; Whitney v. Allaire, 4 Denio, 554; Baker v. Lever, 67 N. Y. 304.

2 Pence v. Langdon, 99 U. S. 581; see infra, sec 289; and see De Bussche v. Alt, L. R. 8 Ch. D. 314.

3 Rothschild v. Rowe, 44 Vt. 389; Pratt v. Farrar, 10 Allen, 519; Williams v. Powell, 101 Mass. 467; Hedges v. R. R.,49 N. Y. 223; Morgan v. McKee, 77 Penn. St. 228. "What is a reasonable time or undue delay, when the facts are not disputed, is a question of law to be determined by the court. Morgan v. McKee, 77 Penn. St. 228. When the facts are in dispute, the question necessarily goes to the jury, and if a party wishes specific'instruc-tions respecting reasonable time or undue delay, he may secure them by putting proper points." Trunkey, J., in Davis v. Stuard, Sup. Ct. Penn. 1882, 11 Weekly Notes, 367.

4 Infra, sec 919; Bwlch-y-Plwm Lead Co. v. Baynes, L. R. 2 Ex. 324; Clough v. R. R., L. R. 7 Ex. 26; Gay v. Alter,.

102 U. S. 79; Cushman v. Marshall, 21 Me. 122; Emerson v. McNamara, 41 Me. 565; Cook v. Oilman, 34 N. H. 556; Poor v. Woodburn, 25 Vt. 234; Coolidge v. Brigham, 1 Met. 547; Esta-brook v. Swett, 116 Mass. 303; Burton v. Stewart, 3 Wend. 236; Cobb v. Hatfield, 46 N. Y. 533; Parkinson v. Sherman, 74 N. Y. 72; Turnpike Co. v. Com., 2 Watts, 433; Roth v. Crissy, 30 Penn. St. 145; Babcock v. Case, 61 Penn. St. 427; Beetem v. Burkholder, 69 Penn. St. 249; Morrow v. Rees, 69 Penn. St. 368; Jennings v. Gage, 13 111. 610; Williams v. Ketchum, 21 Wis. 432.

5 Kimball v. Cunningham, 4 Mass. 502; Nicholson v. Halsey, 1 John. Ch. 417; Pearsoll v. Chapin, 44 Penn. St. 9; Wilbur v. Flood, 16 Mich. 40; Parks v. Evansville R. R., 23 Ind. 567; Bla-ney v. Hanks, 14 Iowa, 400; Mitchell v. Moore, 24 Iowa, 394.

6 Bigelow on Fraud, ch. xi. sec 5; Bellamy v. Sabine, 2Phill. 425; Sa-very v. King, 5 H. L. C. 627; Neblett v. Macfarland, 92 U. S. 101; Ayers v. Hewett, 19 Me. 281; Farris v. Ware, 60 Me. 482; Potter v. Titcomb, 22 Me. 300; Sumner v. Parker, 36 N. H. 449; Willoughby v. Moulton, 47 N. H. 205;.

This, however, does not mean that things should be replaced in every sense as they were, as this is impossible, but that the injured party should restore whatever he has received that he can restore, and surrender any advantages he may have received.1 That absolute restitution is impossible, is no bar when fraud is shown;2 but a tender of performance is not necessary in cases where the defendant has admitted his inability to perform.3 Nor is a tender of reconveyance necessary when there is no interest to reconvey,4 or when the thing in question is worthless.5 In any view, however, possession of a thing bought, when such thing is of value, must be surrendered or the thins: tendered back before a rescission of the contract of purchase can be attempted.1 But when a tender is impossible, and the transaction is imputable to the defendant's fraud, the tender will not be insisted on as a condition precedent.2 Nor is a party defrauded compelled to keep perishable property in good condition as a prerequisite to a bill for rescission.3 A tender of purchase money, also, is not requisite when, in the transaction complained of as fraudulent, the party charged with the fraud received from the complainant a sum as great as the purchase money.4 - A tender at trial is sufficient in all cases where the form of suit does not require the tender to be previously made.5 And in other cases, a party who, by his misconduct, prevents a tender from being made before trial, cannot object that it has been delayed until the trial opens.6 As a general rule, also, no tender is necessary when the judgment asked for involves a restoration to the defendant of all that he had received.7 - A party who can secure the full performance of a contested contract on his own part, cannot, after a partial performance, demand a rescission and return of what he has already paid.1 - The vendee of stock in a corporation, who rescinds on the ground of fraud his contract of purchase, is not bound to tender the stock left on deposit for him by the vendor before bringing an action to recover the purchase money.2 - Where one of the parties elects to rescind, the other party can recover back the money paid on account.3

Rowley v. Bigelow, 12 Pick. 307; Per-ley p. Balch, 23 Pick. 283; Thayer v. Turner, 8 Met. 550; Dailey v. Green, 15 Penn. St. 118; Buffington p. Quan-tin, 17 Penn. St. 310; Renshaw v. Lefferman, 51 Md. 277; Smith v. Brit-tenhara, 98 111. 188; Gatling p. Newell, 9 Ind. 572; Hyslip p. French, 52 Wis. 513; Johnson v. Jones, 13 Sm. & M. 580; Pilcher v. Smith, 2 Head, 208; First Nat. Bank v. Yocum, 11 Neb. 328. That the identical currency received need not be tendered, see Michigan, etc. R. R. v. Dunham, 30 Mich. 128. That a party seeking to recover back consideration paid on forged instrument, must offer to return it to defendant before suit brought, see Roth v. Crissy, 30 Penn. St. 145. And so where the object is to rescind a purchase of stocks alleged to be fraudulent, unless the stocks are absolutely worthless, which is a question for the jury. Babcock v. Case, 61 Penn. St. 427; Beetem p. Burkholder, 69 Penn. St. 249; Morrow v. Rees, 69 Penn. St. 368.

1 Downer p. Smith, 32 Vt. 1; Martin v. Roberts, 5 Cush. 126; Masson v. Bovet, 1 Denio, 69; Gatling p. Newall, 9 Ind. 572.

2 Ibid; Myrick p. Jack, 33 Ark. 425.

3 Kerstr. Ginder, 1 Pitts. 314; Crossgrove p. Himmelrich, 54 Penn. St. 203. See supra, sec 312, 603, 716-747. It is otherwise when there is no such admission as shows the performance of the contract on the defendant's part is impossible. Irvin v. Bleekley, 67 Penn. St. 24. See infra, sec 605.

4 Bates v. Graves, 2 Ves. Jr. 287; Perley p. Balch, 23 Pick. 283; McCabe v. Burns, 66 Penn. St. 356; 77 Penn. St. 309. That rescission of a written contract may be by parol, see Laner p. Lee, 42 Penn. St. 165; though it is otherwise as to a written contract for sale of land, followed by entry and improvement. Cravender v. Bowser, 4 Barr, 259. Infra, sec 325, 661, 995.

5 Thurston v. Blanchard, 22 Pick. 18; Duval p. Mowry, 6 R. I. 479; Frost v. Lowry, 15 Ohio, 200; but see Cook v. Gilman, 34 N. H. 556. If the thing, however, can be made use of as an advantage in any way, or if its loss would be a disadvantage to the party by whom it was sold, tender should be made. Morse v. Brackett, 98 Mass. 205; 104 Mass. 494; Bassett v. Brown, 105 Mass. 551. That tender is not necessary in an action for deceit, see Clarke v. Dickson, E. B. & E. 148; Western Bank of Scotland p. Addie, L. R. 1 Sc. & D. 169; Bacon v. Brown, 4 Bibb, 91.

1 Vigers v. Pike, 8 Cl. & F. 562; Norton v. Young, 3 Greenl. 30; dishing v. Wyman, 38 Me. 589; Miner v. Bradley, 22 Pick. 457; Perley v. Batch, 23 Pick. 286; Ladd v. Moore, 3 Sandf. 589; Gould v. Bank, 21 Hun, 293; Smith v. Webster, 2 Watts, 478; Jackson v. McGinnis, 14 Penn. St. 331; Stewart v. Keith, 12 Penn. St. 238; Haase v. Mitchell, 58 Ind. 213; Warren v. Tyler, 81 111. 15. As to tender see infra, sec 987.

2 Smith v. Smith, 30 Vt. 139; Chandler v. Simmons, 97 Mass. 508; Bartlett v. Drake, 100 Mass. 174; Masson v. Bovet, 1 Denio, 69. Infra, sec 661-995.

3 Neblett v. Macfarland, 92 U. S. 101.

4 Montgomery v. Pickering, 116 Mass. 227. See infra, sec 989.

5 Infra, sec 998 et seq.; Kiefer v. Rogers, 19 Minn. 32; Martin v. Martin, 35 Ala. 560.

6 Southworth v. Smith, 7 Cush. 391; Smith v. Holyoke, 112 Mass. 517; Hammond v. Pennock, 61 N. Y. 145; Baney v. Killmer, 1 Barr, 30; Frost v. Lowry, 15 Ohio, 200; Martindale v. Harris, 26 Oh. St. 379. Infra, sec 312, 603, 716, 995.

7 Allerton v. Allerton, 50 N. Y. 670; Harris v. Ins. Co., 64 N. Y. 196. See generally as to tender sec 970 et seq. It has been said by courts of high authority that when there has been actual fraud on the purchaser's part, the vendor is not required to tender the money received by him as a prerequisite to suit for rescission. Weeden v. Hawes, 10 Conn. 50; Sands v. Cod-wise, 4 Johns. 536; McCaskey v. Graff, 23 Penn. St. 321; Seylor v. Carson, 69 Penn. St. 81; Forniquet v. Forstall, 34 Miss. 87. This, however, is based on the assumption that a sale induced by fraud is absolutely void, which, as is elsewhere argued, cannot be accepted as a general rule. Supra, sec 28, 283; infra, sec 291 et seq. And it is hard to see how a party can claim relief from fraud committed on him when he seeks to retain the profits which the fraud put in his hands. See Bigelow on Fraud, 423.