leased the right of way for a horse-railroad, a lumber-railroad, to go across section 4, to Samuel Rogers. This lease was offered in evidence by defendants, and was dated July 12, 1872, for the term of fifteen years. Plaintiff further testified that the railroad had been abandoned for years. He also testified that he had cut probably about one hundred and fifty thousand feet of white pine on sections 17 and 18, and took off four or five oak-trees from section 4; that he never paid, or offered to pay, the defendants for the timber so taken off, and never paid, or offered to pay, the balance payable by the contracts.

It appeared on the trial that in the spring of 1873 the defendants were enjoined by the United States court from cutting timber on the land covered by the contracts, and that injunction was also served upon the plaintiff, in consequence of which he quit lumbering upon the lands; that plaintiff informed Dickinson that he was enjoined, and he advised that he stop cutting, which he did; and that since that time in 1873 the plaintiff has not been in the possession of or occupied it, or in any manner has been possessed of the land.

The plaintiff's counsel then offered in evidence the original patent of the United States to Mary Hannahs, covering the land named in the contracts, for the purpose of showing that the title was not in the Dickinsons, as plaintiff had claimed; to which defendants' counsel objected, and stated his reasons as follows:

"For the same reason that, under the admissions of the plaintiff himself upon the stand, he cannot recover in this action; for the reason that he admits that he cut off of sections 17 and 18 a matter of one hundred and fifty thousand feet of pine, and on section 4 has cut some timber, - some ten dollars' worth, and has executed a lease for fifteen years of a certain other part of it which had not expired at the time of the commencement of this suit; and for that reason it was impossible, at the time this suit was commenced, for him to rescind and place us in statu quo; and that, under the testimony of the plaintiff himself, he cannot maintain this action.

"We object to it on the further ground that the plaintiff admits himself, upon the stand, that he never tendered any money to Mr. Dickinson on this contract, other than the payments already made, and that he never demanded a deed; and that these defendants were under no obligation to make

him a deed, or perfect their title, until such time as he was willing and made a tender of the purchase price.

"To make our objections cover all points, we repeat here that we object to the introduction of this question of title, or any other evidence in the cause, because, from the admission of Mr. Wright, the plaintiff, upon the stand, he was in no position to rescind, and could not in law rescind this contract. "2. That from like admission of plaintiff on the stand it appears that he has not in fact rescinded (that is, independent of the question whether he could or not).

"Now, provided he could rescind, the evidence shows that he has not rescinded, and never gave any notice of rescission, or has never taken any steps in fact to rescind, before the commencement of this suit."

The court sustained the objection and excluded the testimony.

The plaintiff's counsel then made the following offer, namely:

"I desire to make this offer in this case: That we admit this plaintiff shall pay, and the defendants shall have deducted and allowed to them, the full amount of all timber or anything else that was taken from this land by the plaintiff, or by his agents, up to the commencement of this suit.

And

I now offer to show in the case, as we have started to show, “1. That the defendants, at the time plaintiff demanded his money back, and before this suit, had no title to the land at the time the suit was commenced.

"2. That at the time the plaintiff took the contract and paid the money on it, he supposed the defendants had a title to the land, and did n't know to the contrary until a short time before this suit was commenced; that at the time this suit was commenced, he had fully investigated the title; that he then knew the owners of the land, and informed Mr. Dickinson who they were.

"3. That the land was bought for the timber only; that the plaintiff was restrained and enjoined from cutting or removing timber or trees from any of these lands, by an injunction issued out of the circuit court of the United States for the western district of Michigan, in a suit wherein the creditors of one Timothy Morse (who, in his lifetime, owned these lands, and the lands then belonged to his estate) were complainants, and the defendants were the Dickinsons and one Seaver, and that that suit was commenced, and an injunction issued, be

cause of the fraudulent practices of the Dickinsons, the defendants in this suit; that Mr. William F. Dickinson, in collusion with the administrator of the estate of Timothy Morse, caused these lands to be sold, whereby he could get a title without paying any value for them, and it was through that title that they were pretending to claim when they were going to sell to plaintiff; that plaintiff investigated that matter at the time he investigated the title.

"4. That this injunction remained in full force up to the year 1878.

"5. That during the pendency of this injunction, the fires had destroyed the timber on these lands, and without the fault or neglect of plaintiff.

"6. That since this suit was brought, these defendants have sold and conveyed these lands to other parties."

"The Court: The objection to the offer of the patent, or other evidence of title in this case, will be sustained."

Plaintiff's counsel here offered in evidence the record and files in a case wherein the Dickinsons (these defendants) were plaintiffs, and Mr. Wright (this plaintiff) was defendant, being the case reported in 56 Mich. 42, which was objected to by defendants' counsel as irrelevant and immaterial, which objection was sustained by the court, and to which ruling the counsel for plaintiff did then and there except. We think the court erred.

The plaintiff's cause of action was not entirely based upon the contracts.

In Dickinson v. Wright, 56 Mich. 42, these same contracts were in issue. The Dickinsons, in that case, brought suit to recover the balance of the money payable by the terms of these contracts, and failed, for the reason that the contracts were void under the statute of frauds, for the want of authority in Chase H. Dickinson to sign William F. Dickinson's name thereto. The invalidity of the contracts in question. was settled by that adjudication; and it does not matter that this suit was first commenced. The fact that rendered the contracts invalid did not appear until upon the trial of that

case.

The issue, however, in this suit was broad enough to admit evidence of the invalidity of the contracts in question. Purchase-money paid for the purchase price of land can be recovered in an action for money had and received, whether the consideration fails for want of title or for want of a valid contract to convey.

AM. ST. REP., VOL. XI. - 39

In either case, the purchaser must place the other party in statu quo, so far as is practicable for him to do so; and in either case, the equities, so far as they can be measured by a pecuniary standard, can all be settled and adjusted in the suit.

In this case there is no occasion to call for the interposition of a court of equity. There are no deeds to be surrendered up and canceled, nothing which is required to be perpetuated by a decree. All there is to be ascertained can be ascertained by a jury; and that is, how much in equity and good conscience ought the defendants to repay of the purchase-money they have received. All benefits which the plaintiff has received will have to be deducted, and these can be ascertained and allowed for in a common-law proceeding. The value of the timber cut and removed, and all other benefits which the plaintiff has derived from these contracts, can be adjusted in this action.

A void contract needs no rescission. But if these contracts were valid, and the plaintiff, either on account of want of title in defendants, or because they have placed it out of their power to perform, rescinded the contract, he could do so, under the circumstances of this case, without either tendering performance or placing the parties in statu quo. Through procrastination and delay, for which he was not in fault, the subject-matter of the contracts which formed his inducement to purchase has been destroyed. Under such circumstances, must he tender the purchase-money? It would be unreasonable to require it. Must he place the defendants in statu quo? That is impossible.

Plaintiff entered into the contract in good faith, paid his money according to the agreement, and went on and severed one hundred and fifty thousand feet of pine, the timber which he bought for the purpose of manufacturing into lumber. cannot restore the severed trees. It is impossible for him to restore the property in the same condition it was when he received it. The law does not require impossibilities to be performed. The only thing he can do is to restore its money equivalent, and that he offers to do.

In cases where, acting in good faith, property has been so changed or lost that it cannot be restored in specie, and where its value is capable of being ascertained, a party entitled to may rescind a contract, although he cannot place the other party in statu quo. That is the law of reason, and it is the

1

law of justice. If the current of authority is the other way, based upon technicalities, I cannot yield my assent to the doctrine.

As no rule of property is involved, and as the rights of the parties can be settled and determined in this equitable action, I must hold that the learned judge erred in excluding the testimony offered.

The judgment must be reversed, and a new trial granted.

BILL OF PARTICULARS IS AMENDABLE, like a declaration: Babcock v. Thomp son, 3 Pick. 446; 15 Am. Dec. 235.

RESCISSION OF A CONTRACT FOR THE PURCHASE OF REALTY. - When a contract for the purchase of realty is rescinded, the parties should be placed in statu quo: Humble v. Hinkson, 3 A. K. Marsh. 468; 13 Am. Dec. 195; Hynson v. Dunn, 5 Ark. 395; 41 Am. Dec. 100. Where a vendor agrees to convey, and upon the payment of money and the execution of notes, at a certain time before that time conveys to another, the vendee averring readiness to perform his part of the contract need not make a tender of performance, and in such case, if a part of the money has been paid, may rescind the contract and sue in assumpsit for the amount paid: Stow v. Stevens, 7 Vt. 27; 29 Am. Dec. 139; Smith v. Lamb, 26 Ill. 396; 79 Am. Dec. 381. A purchaser desiring to rescind a contract need only show the inability of the vendor to perform it, and need not show tender of the purchase-money on his part: Runkle v. Johnson, 30 Пll. 328; 83 Am. Dec. 191. The vendee is entitled to the return of the purchase-money, where the rescission is at the instance of the vendee, and on account of the vendor's fault: 1 Rob. (Va.) 12; 39 Am. Dec. 242.