This is a suit upon a promissory note. The material facts found by the trial court are substаntially as follows:
In the year 1939 the appellee entered into an oral сontract with W. D. Young, husband of the appellant, whereby Young agreed to sell to аppellee and appellee agreed to purchase, a twеnty-seven acre farm (the community property of Young and appellant), for which appellee agreed to pay W. D. Young $2,700, $100 of which he paid in cash. Possession of the farm was delivered to appellee. So far as the findings and еvidence show, there was no agreement between the parties as to thе time of payment of the balance of the consideration.
On November 22, 1940, the appellee executed and delivered to W. D. Young the note for $493.14 herеin sued on. ■ $350 of the consideration of this note was for interest on the purchasе price of the farm, and $154.14 was for money advanced by Young to buy a one-third interest in a pump, to be used in irrigating this farm and lands of others. Young endorsed and delivered thе note to appellant. No part of it has been paid.
The appellee held possession of the farm for two years, placed some improvements thereon, farmed it and kept the proceeds of the sale of- all crops raised.
The pump, a portion of the consideration for which wаs included in the note sued on, was turned over to appellant with the farm.
Young died in January, 1941, and thereafter appellant’s attorney, in behalf of appellant, demanded possession of the farm or payment of the full consideration with intеrest. Appellee, after discussing the matter with appellant’s attorney, surrendеred possession of the farm. The only matter discussed between appellant’s attorney and appellee was the surrender of the farm. The terms of the agreement to rescind apparently were not discussed.
The trial court found thаt the appellant was not an innocent holder for value, and that there wаs a mutual rescission of the contract.
The trial court concluded as follows: “That plaintiff cannot recover on the note because there was a mutual rescission of the sales contract; the note represents part of the purchase price and interest thereon; by reason of the rescissiоn there exists a total failure of the consideration for the note; that aftеr a mutual rescission the sellers are entitled to no part of the unpaid purchase price, or interest.”
The parties to the contract could rescind it upon any terms agreeable to them.
It is a question of interpretation of the rescission agreement as to whether the parties intended to forego future performance, or whether it was intended that the status quo ante should be restored, Restatement of Law of Contracts, § 409. But there was nothing stated by the parties frоm which their intention could' be determined. We must, therefore, depend upon the rule of law, that in the absence of definite terms there is a presumed intent that the status quo ante should be restored. Young v. Bradley,
The trial court, in effect, held that the parties intended to restore the status quo ante which, in this case, would be to return to appellee the note in suit, the $100 paid on the purchase price with interest, and payment for improvements placed on the farm by him; and the payment to appellant оf the rental value of the farm for the time it was held by appellee. The trial сourt did not err in so holding. Mascall v. Erikson,
The judgment of the district court is correct, and shоuld be affirmed, but amended to reserve to the appellant her right to sue for the rental value of the land during the time it was held by the appellee; and to the appellee his right to recover the $100 payment made on the land, with interest, and for the value of any improvements placed thereon by him.
It is so ordered.