165 Ill. App. 228 | Ill. App. Ct. | 1911
delivered the opinion of the court.
Appellant insists that the court erred in holding that the contract between appellant and appellee was not wholly expressed in the writing between them; and that the court also erred in finding that appellee had complied with his contract as far as permitted to do so by appellant, and that appellant had not performed his agreement. After examining the evidence in the record carefully we are of the opinion that appellant’s contentions in those particulars cannot be sustained. The evidence in the record is ample to sustain the specific facts as found by the master and confirmed by the court.
There is no evidence in the record and no finding by the court that appellant entered into said contract with the fraudulent intent to deprive appellee, Mad-son, of his property and business. There is no evidence in the record that appellant was guilty of any fraud whatever. The evidence simply shows a breach of the contract by appellant, and that is the sum and substance of the findings by the master and by the court. “In order for the court to grant relief by way of rescission, the case presented must embrace facts bringing it within some recognized head of equity jurisdiction, such as fraud, accident, mistake, duress, undue influence, or the like; or it must at least be shown that the complainant, if denied equitable relief, will sustain an injury for the redress of which a court of common law can afford no adequate remedy.” 24 Am. & Eng. Ency. of Law (2nd Ed.), 611; Haugle v. Yerkes, 187 Ill. 358; Gore v. Kramer, 117 Ill. 176.
The general rule is that the equitable relief of rescission of the contract will not be granted for a mere breach of the contract. The remedy in such a case is to be found in an action at law. There are some cases, however, where the equitable relief is granted for a breach of the contract in which the remedy at law is clearly inadequate. In this case the cause of action is for the breach of a simple contract of employment under an agreement to pay a commission on all new business, and in which the breach arose by reason of a disagreement as to the meaning of the term “new business.” There appears no reason, so far as we can see, why appellee may not have a complete and adequate remedy at law.
Other reasons might be given why the equitable remedy should not be granted in this case. The object of rescission of a contract is that the parties may he placed in statu quo; that is, in the same situation that the parties occupied before the contract was made. It is not possible now for appellant to return the stock of goods purchased by him to the receiver in bankruptcy or to the complainant, and no such decree was given. It is not possible for the court to decree the return to appellee of the mail-order list, which he says was the most valuable thing he agreed to turn over to the appellant, and which appellee admits appellant had to afterwards purchase of the receiver in bankruptcy, as it was held to be property of the corporation. It was a part of appellant’s agreement to buy the stock of jewelry, as contended by appellee, and having bought it from the receiver, as well as the mailing list, the court had to recognize appellant’s legal right thereto and allow him to retain them. It is admitted by appellee, virtually, that none of the other things turned over by him to appellant under his contract, except the lease and the mailing list, was of value. Appellee has not returned or offered to return to appellant the consideration of $50 per week for two months’ work that appellant has already paid to him. A party cannot have a contract rescinded, as a general rule, and at the same time retain a part of the consideration received by him. Rigdon v. Walcott, 141 Ill. 649; Buchenau v. Horney, 12 Ill. 336.
For the foregoing reasons appellant’s contention that appellee was not entitled to the equitable relief of rescission and cancellation is sustained; and the decree of the lower court is accordingly reversed.
Reversed.
