Plaintiffs, claiming they had been induced by the fraud of defendants to enter into- an agreement to purchase -a restaurant business of them in Grand Rapids and to make a down payment on the *409 purchase price of $700, gave written notice of rescission 11 days after they took possession and delivered to defendants the keys to the building. The same clay or early thе following morning defendants took possession of the business and 'have since run it and have offered to sell it. The parties evidently used a blank form of contract ordinarily used in the sale of real estate in making their agreement; it contains the usual provisions for payment of taxes, provisions for forfeiture, etc. Plaintiffs’ declaration set up the fraud claimеd, the notice of rescission and alleges that they:
“tendered the property back to the defendants, and the defendants have taken possession thereof.”
The case is here reviewed on ease-made which contains but a small portion of the testimony; it does contain the opening statements of both counsel followed by this:
“Witnesses were thеn sworn on behalf of plaintiffs to maintain the allegations set forth in plaintiffs’ declaration and the claims made in the opening statement of counsel for plaintiffs.
“Witnesses were swоrn on behalf of defendants to maintain the claims as set forth in the opening stateiment made by counsel for defendants.”
Without detailing at length, it may be said that plaintiffs’ counsel in his opеning statement claimed the right to recover on two theories, one on the ground of fraud, which was the basis of notice of rescission, and the other on the ground of rescission by mutual consent and acquiescence; defendants’ counsel in his opening statement denied there was any fraud and insisted defendants took possession of the property solely pursuant to their rights under the terms of their contract.
Plaintiffs’ declaration counted on fraud as a basis of rescission, but, strictly speaking, it did not count
*410
on rescission by mutual consent and acquiеscence. It was, however, within the discretion of the trial court to allow an amendment, and while this court can not permit an amendment which will work a reversal, it may here make amendments on its own motion to prevent a mistrial.
Johnson
v.
County of Muskegon,
There are several assignments of error dealing with *411 the charge as given and requests preferred on the question of rescission by mutual consent and acquiescence. The rules on the subject of mutual rescission are fairly stable. In 24 R. C. L. p. 276 it is said:
“The mutual rescission of an executory contract of sale puts an end to any obligation of the parties further to perform or liability for the nonperformance of the contract. And though the sale is executed so as to pass title, a mutual rescission and return of the property to the sellеr releases the buyer from any liability for the price. A mutual cancellation, the seller taking back the subject-matter, and the buyer taking back notes given for the price, will, as betwеen the parties, as effectually revest the title in the seller as would the most formal transfer. Where there is a mutual rescission of an executory contract of sale under whiсh the buyer has made part payments, the view has been taken that, in the absence of any express or implied agreement to the contrary, the buyer is entitled to the return of thе payments made.”
And in 2 Black on Rescission, § 528, it is said:
“The rescission of a contract by mutual consent does not require a formal agreement or release, but may result from any act or any course of сonduct of the parties which clearly indicates their mutual understanding that the contract is abrogated or terminated, or from the acquiescence of one party in its exрlicit repudiation by the other.”
Davis
v.
Strobridge,
“The contract of sale became a valid one by part performance (Scott v. Bush,26 Mich. 419 ), and when the defеndant proceeded to take measures to oust the plaintiff and put an end to the contract, the latter was at liberty to acquiesce and consider it as determined by the former. This he did, and as a consequence there was a failure of consideration for the purchase money which had been paid, and the defendant became liable to pay it back under the equitable count for money had and received, and according to our previous decisions the allowance of the interest was not illegal.”
In
Ives
v.
Bank of Lansingburg,
“Where the vendor in an executory contract for the purchase of lands recеives from the vendee a quitclaim deed of the lands, this is a rescission of the contract; and he can not afterwards maintain an action on notes which were given for the purchase price.”
In the recent case of
Walter-Wallingford Coal Co.
v.
A. Himes Coal Co.,
*413 The charge of the trial judge taken as a whole fairly stated to the jury the law of the case as outlined above. Certain excerpts taken alone may be subject to criticism, but we must consider it in its entirety and when so considered it prеsents no reversible error.
We have noted the fact that plaintiffs operated the restaurant for 11 days. During this time some of the stock was sold and was replenished in part only. Defendants insist plaintiffs did not and could not place defendants
in statu quo
and for that reason could not rescind. The trial judge, however, directed the jury to make a deduction of the propеr amount, which was not in dispute. This was in accordance with our holding in
Zadel
v.
Simon,
“The personal property was not mentioned in the contract, but it is undisputed that it was included in the deal. Some feed was used up; some potatoes Which were of little value were fed to the hogs; a few apples were also сonsumed. This rendered it impossible to .tender to defendants all that was received by plaintiff. Defendants’ counsel insist that inasmuch as plaintiff could not under these circumstances place defendants in statu quo he can not rescind. The trial judge entertained the view that plaintiff’s inability to return these small items did not defeat his right to recover and that the jury might deduct the value of the property consumed. This view is in accordance with the holdings of this court.”
The judgment will be affirmed.