It is well settled that in an action for rescission of a contract —
"The party defrauded will generally lose his right to rescind if he takes any benefit under the contract or does any other act which *Page 435 implies an intention to abide by it or an affirmation of it after he has become aware of the fraud." [13 C.J. 524.]
[See, also, 9 C.J. 1199.] There is no doubt but that plaintiff ratified the contract made between Nelson and himself at Dearborn by his conduct in taking the property, to-wit, the two drafts of the Dearborn bank and the $50 in cash and retaining the same after he was fully cognizant of the facts which he now contends form the basis of the fraud that he alleges was committed upon him and after he had consulted attorneys. He not only used the two drafts as a basis of his claim filed with the finance commissioner in charge of the Dearborn bank after he knew the facts and for a long time had in his possession the check marked "Paid" and had secured legal advice, but received $2500 in dividends which he at no time before the trial offered to tender to either of the defendants. Aside from this, there is testimony that further dividends will be paid which he will receive. Plaintiff did not offer to make return of what he received upon these drafts in his petition or even offer to do equity, and only after the fact that he had taken an inconsistent position was pleaded in defendant's answer, did he mention the fact that he had received this amount from the finance commissioner. His excuse for proving up the claim with the finance commission is that he was over-persuaded by Nelson to do so, that the period during which the claim could be presented was about to expire and that someone was entitled to the claim. There is no evidence, or any pleading, of any fraud, accident, mistake or undue influence in reference to plaintiff's proving up his claim, and he took this action according to his own testimony after he had consulted attorneys. His reply alleges that he filed this claim on behalf "of this said defendant (defendant bank)" alone, but there is no evidence tending to show this. The letters written by Nelson to him urged him to prove up his claim for his own benefit and does not say anything about defendant bank's having any interest in the claim. They do not say anything about making the claim for the benefit of defendant bank. Plaintiff does not contend in his testimony that the bank ever requested him to make the claim for its benefit. The form of the claim shows that it was made on behalf of the plaintiff and he received the dividends and did not offer to pay them to anyone. Defendant bank was not insolvent and plaintiff did not prove his claim to prevent further loss to himself and he retained the dividends. Under the circumstances. I think that plaintiff is not entitled to rescind, and the judgment should be reversed. [Light Power Co. v. Machine Co.,170 Mo. App. 224, 231; Brown v. Worthington, 152 Mo. App. 351; Bank v. Bank, 203 S.W. 662.] *Page 436