The opinion of the court was delivered by
AlleN, J.:
scission,**Row We have only to consider the case made by the evidence introduced by the plaintiff, and determine therefrom whether there was anything to go to the jury. It is conceded that it was a fraud for Lehman and Gilbert to enter into a joint purchase of this land with the Hutchinson parties, when they were interested as sellers, without disclosing that interest. The controversy in the case is as to the right of the original plaintiff in this action to rescind; and if that be determined adversely to him, then as to the measure of his damages. To rescind is to revoke, to annul what has already been done, and implies that the parties shall be again placed in the same condition that they were in before the transaction. It never implies the making of a new contract for the parties by the court. The parties interested in this transaction purchased two tracts of land. In the east tract, Lehman and Gilbert were interested as sellers as well as purchasers. In the west tract, they were interested only as buyers. A rescission of the contract would require not merely a transfer of the interest of the plaintiff in the corporation to the defendants, nor alone the transfer by the corporation back to Stewart of the land in which Lehman and Gilbert held a half interest, but would also require a transfer of the west 40 acres of the corporation back to Miss Briggs. Now, it is not contended that any fraud was perpetrated either by Stewart or Miss Briggs. They are not parties to this action; and if they were, no facts are disclosed, either by the pleadings or the testimony, which would authorize a rescission as against them. If a rescission were warranted by the facts of the case, the necessary parties are not before the court. The corporation in which the title to the land is vested is not even made a party. I he court clearly has no power to compel the defendants to purchase the plaintiff’s *234stock in the corporation. (Hardy v. National Bank, 46 Kas. 88; Neal v. Reynolds, 38 id. 432; Jeffers v. Forbes, 28 id. 174, and cases there cited.)
Was there any competent evidence to go to the jury on the question of damages? What is the measure of plaintiff’s recovery? Plaintiff contends that she is entitled to recover all that was lost by reason of her intestate’s having entered into this transaction, and that that loss is measured by the difference between the amount of money paid and the value of the property obtained through the fraudulent purchase, measured by its value at the time of the trial; that the rule for the ascertainment of damages occasioned by fraud is different from that in an action on a covenant; that the plaintiff is entitled to have her whole loss made good; and that, in order to do so, she must be paid back all the money her intestate parted with, diminished only by the present value of the property obtained through the transaction. On the other hand, the defendants contend that the plaintiff’s damages, if any be awarded her, must be measured as of the time of the transaction; that plaintiff’s intestate had a right, at any time after the purchase, to dispose of his interest in the property; that if it was worth, or could be sold on the market for, as much as he paid for it, and he saw fit to continue to hold it in expectation of an increase in value, it is his own speculation from that time on, and that the defendant is in nowise responsible for an adverse turn in the real-estate market.
The trial court seems to have regarded the testimony introduced as wholly insufficient to challenge the consideration of the jury. The land was purchased in May, 1887. There is evidence tending to show that an inflation in the market value of real estate in the vicinity of Newton began about February, 1887; that just prior to the boom this land was worth from $50 to $75 an acre; that thereafter it increased in price very rapidly; that the inflation of prices lasted about six months, after which there was a shrinkage. It appears that in January, 1887, the east 40 was purchased by Gilbert *235and others for $4,000. Defendant Gilbert testified that there had been a general depreciation in property ever since the 1st of August, 1887, and that the present value of property is lower than before the commencement of the boom. The plaintiff offered to prove the present value as a measure of damages, and this evidence was rejected. Plaintiff’s counsel contend that prices of real estate at the time of the purchase were inflated, fictitious, and temporary, and, for that reason, that they did not constitute a safe guide for the measurement of damages, and cite, in support of their contention, Carter v. Binninger, 33 N. J. Law, 513; Kountz v. Kirkpatrick, 13 Am. Rep. 687, and some other cases. The facts in these cases were exceptional in character, and the rule laid down in them is confessedly a departure from the main current of the authorities. In Sedgwick on the Measure of Damages, § 1027, it is said that, in actions for fraud in the sale of land, “it has usually been held that the measure of damages is the difference in value between the land as it would have been if as represented and as it actually was. Such difference in value must be estimated at the time of the sale.” And Sutherland on the Measure of Damages (§1171) is to the same effect. So, also, Gaulden v. Shehee, 24 Ga. 438; Brisbane v. Pomeroy, 13 Daly, 358; Marvin v. Prentice, 94 N. Y. 295; Van Epps v. Harrison, 5 Hill, 63.
2' Se o?damages, We think the true measure of damages in this case is the difference between the price actually paid and the fair market value at the time of the purchase. The only fraud charged against the defendants was the concealment of their interest in a portion of the property purchased. There is no claim of misrepresentation as to the quality or location of the land. The only prejudicial influence which the fraud of the defendants could have exerted was upon the plaintiff’s judgment as to the present and prospective prices, and if the defendants but induced the plaintiff to purchase property at what it was fairly worth at the time and could have been sold for, the fraud is certainly not of a very aggravating character. The plaintiff and his asso*236ciates went into a speculation. They bought at a very high price, perhaps, but they bought in anticipation of receiving a still higher one. If it were shown that market values of real estate in the vicinity of Newton were the fictitious creations of defendants, either alone or acting in concert with others, possibly a different question might be presented; but, so far as the record in this case discloses, all the parties to this action were alike tinged with the prevailing madness of the time. All were speculating. All took chances on the fluctuations of the market. The court appears to have held the view that the plaintiff must prove the market value of the land at the very time of the purchase, and that evidence as to the value shortly before and shorty after the transaction is not worthy
8' evidence™1110-' of any consideration whatever. In this we think the court erred. Values of real estate can seldom be fixed at the very place and on the very day of a given transaction. The real-estate market is quite unlike the market for those articles of daily use which are constantly bought and sold in the market, are precisely alike in every essential particular, and constantly changing hands between buyer and seller. No two pieces of real property are precisely alike, and sales, except under conditions of speculation and excitement, in any given community, are usually made only at considerable intervals of time. We think the evidence shows the value of this land about January preceding the purchase. It shows that there was an increase in market value thereafter, afnd then that it steadily fell, until it was lower than before the inflation. Now, while the rights of these parties are to be measured by the condition of the market at the time of the transaction, and while evidence of values at that very time would be better than that iu fact introduced by the plaintiff, we think there is some evidence in the case tending to show that the price paid was more than the value of the land at the time of the transaction, and that the court erred in taking the case away from the jury.
It is contended, on behalf of the defendants Templar and Moore, who appear by separate counsel, that whatever conclu*237sion may be reached by the court as to the liability of Lehman and Gilbert, the demurrer was rightly sustained as to them. The evidence tends to show that Templar and Moore were active in bringing about the purchase of the property. It appears that Gilbert afterward took Templar’s interest off his hands, and that Moore realized a profit of $1,000 from the sale of the Briggs 40. The defendants are all charged with conspiracy to defraud, and, under such a charge, the range of inquiry is necessarily wide, and the force to be given to particular circumstances mainly a question for the determination of the jury. Without expressing an opinion as to the weight of the testimony, and inasmuch as the case must be retried, we -think there was some evidence against all of the defendants.
All the Justices concurring.