51 Iowa 68 | Iowa | 1879
There was evidence tending to prove the aforesaid matters, andvthat defendant had complied with the agreement on his part. There was no evidence tending to show that the plaintiff had ever paid or tendered to the defendant the sixty-nine dollars paid out by him under the contract, if any there was. The plaintiff claimed she had let the defendant have said property by reason of the fraud or duress of the defendant, and the jury must have found the property was obtained by the one or the other.
The defendant asked the court to instruct the jury as follows :
“4. If you find from the evidence that the defendant, as part of the purchase price of the team, paid a debt due from the plaintiff, and fifty-eight dollars money due from her husband’s estate, for which the same was liable, then the plaintiff cannot rescind the contract and reclaim the property, without placing the defendant in the same position he was before the trade was made, by repaying or offering to repay the money paid out by him, unless the defendant was guilty of some fraud practiced upon her, and you should find for*70 the defendant; but if you find he practiced fraud she can recover without tendering what she received from him.”
This instruction was refused, and the defendant excepted and assigns such refusal as error.
The general rule undoubtedly is that a contract cannot be rescinded by one party thereto “unless both can be restored to the condition they were before the contract was made.” 2 Parsons on Contracts, 679. It follows, therefore, that before the plaintiff could rescind she must have paid or tendered to the defendant all that he had paid out under the contract, unless it had been obtained by fraud, which it is said constitutes an exception to the general rule. 2 Parsons on Contracts, 780. The foregoing instruction is in strict accord with this authority. It should, therefore, have been given.
There was no error in refusing the first three instructions asked by the defendant, because, if for no other reason, the element of fraud is omitted therefrom.
The instructions given by the court do not seem to have been excepted- to.
Reversed.