McCAE'TY, C. J.
(after stating the facts as above).
The first question for consideration involves the right of respondent to withdraw his admission in writing that the default occurred “through the inadvertence and excusable neglect of defendant’s attorneys,” which admission he in this court for the first time attempts to withdraw. In his brief he says: “Any admissions as to the excusableness of the default, or, in other words, the sufficiency of the facts is an admission of law, which plaintiff may withdrew, and *55which, for the purposes of determining the law upon this appeal, he does withdraw.” Respondent then proceeds to discuss at considerable length the question whether appellant’s default was in fact excusable. By conceding in writing that the default was excusable, respondent thereby, in effect, consented that it might be set aside and the case opened up, provided the court should hold that the answer tendered by appellant contained a meritorious defense. Having thus, by his written admission, reduced the discussion of the ease before the trial court to the single proposition as to whether the answer contained a meritorious defense 1 to plaintiff’s cause of action, we think it may be fairly inferred that the court based the ruling complained of solely on that ground. Therefore the respondent ought not, at this stage of the case, be allowed to change his position. To permit him to do so would be manifestly unjust to appellant. The contention that the sufficiency of the facts set forth in the affidavit to show “excusable neglect” must be tested by the same rule that governs when a complaint is challenged on the ground that it does not state facts sufficient to constitute a cause of action, and that the question may be raised for the first time on appeal is untenable. In determining the sufficiency of a complaint when challenged on the ground that it does not state facts sufficient to constitute a cause of action, a much stricter rule is invoked than obtains in cases where, as here, a party seeks to have a default set aside on the ground of mistake or excusable neglect. In the first instance, if the complaint wholly fails to state a cause of action, objections to it on that ground may be successfully urged at any time. In the other the 2, 3 question whether a default and judgment should be set aside, and the party aggrieved given an opportunity to plead to the merits, is one that rests within the sound discretion of the court; and, unless it is made to appear that this discretion has been abused, the rulings of the trial court on matters of this kind will not. be disturbed on appeal. The foregoing principles have sp often been announced, and *56so' universally adhered to by thé courts of last resort, that we deem it -unnecessary to cite authorities in support of them. In this case, however, as we have pointed out, respondent admitted in the court below that the default occurred through the inadvertence and excusable neglect of appellant’s attorneys, therefore the court was’Sot called upon to determine whether the "facts recited in the affidavit were sufficient to show excusable neglect to entitle appellant to have the default set aside'and the case'opened up, and hence was not required to exercise its discretion in the matter. It is also a well-settled rule, that a theory, assumed and acted upon by the parties litigant in the trial court, must 4 be adhered to upon appeal. (Lebcher v. Lambert, 23 Utah 1" court="Utah" date_filed="1900-12-10" href="https://app.midpage.ai/document/lebcher-v-lambert-8654515?utm_source=webapp" opinion_id="8654515">23 Utah 1, 63 Pac. 628; Elliott on App. Pro., sec. 490.) In 2 Cyc. 670, it is said:
“One of the roost important results of the rule that questions which are not raised in the court below cannot he reviewed in the appellate court is'that a party cannot, when a cause is brought up for appellate review, assume an attitude inconsistent with that taken by him at the trial, but that such party is restricted to the theory on which the cause was prosecuted or defended in the court below.. Thus, where both parties act upon a particular theory of the cause of action, they will not be permitted to depart therefrom when the case is brought up for appellate review.”
Numerous cases are cited in tbe footnote, which illustrate and support the doctrine. As we have pointed out, respondent conceded in the lower court that appellant’s default occurred through “inadvertence and excusable neglect,” and the questions involved were submitted to the court upon that theory. Therefore under all the authorities he is precluded from taking any other or different position in this court.
The next' question presented is, Did the answer tendered by appellant in connection with his motion contain a good defense to respondent’s demand, or to any substantial part thereof? The general denial contained in the 5 answer at least puts in issue the amount of damages demanded by respondent. Besides, in his special defense *57appellant alleged tbat' tbe lease was made in tbe presence of respondent, and at bis special instance and request, and tbat be then and there released appellant from bis lease on said premises, and from any obligations thereunder, and tbat, in pursuance thereof, appellant put Cook into possession of tbe premises. Now if these claims are well founded, they constitute a good defense to respondent’s alleged cause of action. We know of no rule of law, or principle of equity, under which a party may recover damages 6 for an act or omission which be himself induced or assented to. It is a familiar maxim tbat “volenti non fit injuriaTbat is to say, what a person assents to or induces to be done be cannot afterwards complain of as an injury. Respondent, however, contends tbat the special defense interposed by appellant was insufficient because it was based upon an alleged transaction which, even if it actually occurred, was nothing more than an attempt, on tbe part of respondent, to surrender an interest in land by parol, which, under the statute of frauds, was a nullity. While it is settled law that no interest in land can be created, transferred, or surrendered by merely a parol executory agreement, it is also equally well settled that a contract for the sale or leasing of real estate may be rescinded'by parol. “Such rescission may be effected, not only by an express agreement, but by any course of conduct clearly indicating a mutual assent to the termination or abandonment of the contract.” (2 War-velle, Vendors (2 Ed.), sec. 826.) A question involving this same principle of law was raised in the case of Cutwright v. Union Savings & Inv. Co., 33 Utah 486, 94 Pac. 984, and this court held, in an opinion written by Mr. Justice Erick, that an executed parol agreement to rescind a contract for the sale of land, where the 7 vendee has surrendered, and the vendor has gone into, possession of the premises covered by the original contract, is not void under the statute of frauds. The question here involved is elaborately discussed in the opinion, and many cases are cited in' support of the doctrine therein announced. *58Tbe objection that the transaction pleaded as a special defense is void under the- statute of frauds must be overruled.
We are of the opinion that, under all the circumstances, the court should have set aside the default, vacated the judgment, and permitted appellant to answer to the merits. The case is therefore reversed, with directions to the trial court tó set aside the default, vacate the judgment, and permit appellant to answer to the merits on such terms as the court may deem just; appellant to recover costs of this appeal.
STRAUP and FRICK, jj., concur.
ON REHEARING.
FRICK, J.
Respondent has filed an application for a rehearing in which it is strenuously insisted that we erred in holding that the averments contained in the answer as an affirmative defense are .sufficient to avoid the statute of frauds. In support of the contention counsel cites cases where, under particular facts proved in those cases, there was no surrender, and that a parol executory agreement to surrender demised premises will not be enforced. We have not held anything to the contrary. Counsel seems to misconceive the purport and effect of the decision. In view of this we have deemed it best to add a few words to what is said in -the original opinion.
The question before us was not whether the- facts adduced at the trial of a case involving a surrender by parol was sufficient, or not sufficient, to constitute a surrender. Nor did we hold that a parol executory agreement to surrender may be enforced, but what we held is that an executed agreement to surrender, although by parol, may be sufficient. The only question for determination was whether the aver-ments contained in the answer, which are stated in the *59opinion, are broad enough to admit proof of an executed agreement to surrender the demised premises. If the agreement to surrender is shown to have been fully executed by both parties, neither one of them can thereafter claim that the agreement was unenforceable because within the statute of frauds. In such event nothing is enforced, except what the parties themselves willingly agreed to and as willingly performed. If the surrender was completé, and made with the consent of both parties, the law does not concern itself with the manner in which it was effected. It is only when an agreement which the law requires to be evidenced by a writing is sought to be enforced that the law does not authorize its enforcement, unless established in accordance with legal requirements. The affirmative defense set up in the answer contains averments which partake of both the elements of an estoppel and an executed agreement to surrender. While we entertain serious doubt as to whether the facts alleged are sufficient, as they now stand, to constitute an estoppel, still it is apparent that the statement in this regard could be cured by a more specific statement. 8 Upon the other hand, we are quite clear that the facts pleaded are sufficient to admit evidence showing an executed agreement and a surrender of the demised premises. The answer, therefore, ■ states at least one good defense.
The case of Ogden v. Sanderson, 3 E. D. Smith (N. Y.) 166, which counsel for respondent insists is decisive of the question in his favor is, in our judgment, just to the contrary. While the facts with regard to a parol agreement of surrender in that case are exactly parallel with the facts in this ease, the decision, however, squarely rests upon the fact that the agreement there in question was never executed. The court, at page 169, in speaking of the negotiations, says: “All these negotiations, however; appear to have failed.” Further, in speaking of what constitutes an eviction, it is said:
*60“An eviction of a tenant is an interference witli Ills possession of tiie premises, or some part thereof, by or with the consent of the 'landlord, by which the tenant is deprived of the use without his consent; but, where the tenant is present at a' negotiation to relet the premises to a third person and does not object, but at the same time is proposing a surrender on his own part, a possession by such third person, under such circumstances . . . could hardly be considered an eviction.”
It is true that the court in that case held that there was no surrender because, as it said, “no surrender is proven. A proposed surrender was talted of, but not executed, and this lease could only be surrendered by writing' or by operation of' law.” If possession 'of leased premises is surrendered by the tenant and accepted by the ■ landlord, it constitutes a surrender by operation of law. This is the effect .of the holding in the original opinion. If, therefore, appellant can establish the "fact that the 'agreement to surrender was fully executed with the consent of both parties, then he has a good defense to the action. This proof, we think, is admissible as the answer now stands. But if the. averments are not deemed sufficiently specific, respondent has a remedy by special demurrer. As against a general demurrer (which the objection in this case, in effect, is), in view of the liberal construction that our statute requires to be given to pleadings, we think the averments are sufficient. The application for a rehearing, therefore, is denied.
STKAUP, C. J., and McCARTY, J., concur.