Hayton v. Clemans
| Decision Date | 28 June 1917 |
| Citation | 165 P. 994,30 Idaho 25 |
| Parties | CHARLES G. HAYTON and MARY L. HAYTON, His Wife, Respondents, v. W. R. CLEMANS and MAUD CLEMANS, His Wife, Appellants |
| Court | Idaho Supreme Court |
Case reaffirmed.
A rehearing having been granted in this case, the court has very carefully reconsidered the questions presented to it upon this appeal. The point most strenuously urged is that the complaint fails to state facts sufficient to constitute a cause of action in that it does not show that at the time plaintiff claims to have discovered that he was defrauded and at the time the action was commenced, any offer was made to return to defendant the interest or title to the Walla Walla property. The allegations of the complaint as to the transactions between the parties are sufficiently shown in the original opinion. It is further urged that not only is the complaint insufficient in this respect, but that the proof shows that no such offer was made, and that therefore the entire case must fail.
The contention of appellant on this point, as I understand it, is that before a party is entitled to rescind a contract, he must put, or offer to put, the other party in statu quo by a full restoration of all that he has received. This court has heretofore held that this rule is applicable in cases where a rescission is made before an action is brought, but that such a tender or offer is not necessary as a condition precedent to a suit for rescission, and I feel that such decision is controlling and correct. (Gamblin v. Dickson, 18 Idaho 734, 112 P. 213.)
After the filing of the original complaint in this action, the rights of all the parties hereto in the Walla Walla property were canceled by a decree of the superior court of Washington for Walla Walla county, forfeiting the rights of all parties claiming under the Preston-Kenworthy contract for default in payment of moneys due November 1, 1912, under the terms of the contract. The amended complaint, on which this action was tried, pleads the decree of the Washington court.
Conceding that it is necessary in a suit for rescission that the plaintiff plead his willingness to restore the consideration received by him and to do equity, do the facts pleaded in relation to the foreclosure of the Washington contract, under which contract both appellants and respondents acquired an interest...
To continue reading
Request your trial