Sec 286

A party cannot compel rescission if he has kept his intention in this respect quiet until the other party has done or left undone things on the basis of the contract which would expose him to irreparable loss if the contract is rescinded.4 Thus an insurance policy may be voidable on the ground of fraudulent concealment by the insured; but the insurer who knows of this concealment, and apparently acquiesces in it, cannot, when the insured would thereby lose the opportunity of insurance, rescind it.5 " Or the interest taken under the contract by the party misled may have been so dealt with (with his assent) that he cannot give back the same thing he received. On this principle, a shareholder cannot repudiate his shares if the character and constitution of the company have in the mean time been altered."6 In such cases it has been held too late to repudiate the shares, the only remedy being an action of deceit against the directors personally for the false statements.7 And a party who makes restitution impossible cannot compel restitution,8 though it is otherwise when such restitution is made impossible by the party to whom the original fraud is imputable.1 The same rule is adopted in the Roman law in respect to the restitutio in integrum, and is affirmed in the Scotch law. "It can only be had where the party seeking it is able to put those against whom it is asked in the same situation in which they stood when the contract was entered into. This is necessarily to be inferred from the expression restitutio in integrum; and the same doctrine is well understood and constantly acted on in England."2 But the mere possession of property taken under a contract of sale does not preclude the purchaser from contesting the sale on ground of fraud. In decreeing rescission, the court can give compensation by an account of rents and profits.3 "So long as he has made no election, he retains the right to determine it either way; subject to this, that if in the interval, whilst he is so deliberating, an innocent third party has acquired an interest, or if in consequence of his delay, the position even of the wrong-doer is affected, it will preclude him from exercising his right to rescind; and lapse of time without rescinding will furnish evidence that he has determined to affirm the contract."4 A party, also, implicated in a fraud, cannot obtain relief from a contract the fraud induced,5 unless he was a dupe or victim of the fraud.6

Rescission not granted when by complainant's laches other parties would be exposed to loss.

1 Pierce v. Jarnagin, 57 Miss. 107.

2 Pence v. Langdon, 99 U. S. 578.

3 Infra, sec 520, 746; Hudson v. Reel,.

5 Barr, 279; Feay v. De Camp, 15 S.

6 R. 227.

4 Clough v. R. R., L. R. 7 Ex. 26; Baker v. Lever, 67 N. Y. 304; Bond v. Ramsey, 89 111. 29; Bulkley v. Morgan, 46 Conn. 393; Mecke v. Ins. Co., 8 Phila. 6; see Knight v. Houghtalling, 85 N. C. 17.

5 Morrison v. Ins. Co., L. R. 8 Ex. 206.

6 Pollock (Wald's ed.) 511, citing Clarke v. Dickson, E. B. & E. 148.

7 Ibid.; Clarke v. Dickson, 6 C. B. (N. S.) 453; West. Bank of Scotland v. Addie, L. R. 1 Sc. & D. 145.

8 Vigers v. Pike, 8 Cl. & F. 562; Nickel Co. v. Unwin, L. R. 2 Q. B. D. 214; McCrillis v. Carlton, 37 Vt. 139; infra, sec 312, 603-4, 661, 716, 747, 901.