(after stating the facts.) Counse for appellant, in his brief, states that his first contention if *581that the court erred in rendering judgment against the appellant for all the costs. A careful examination of the record fails to disclose that any reference to this assignment of error is found in the proceedings of the court. No motion was made to ■ retax the costs. If such a motion had been made at the proper time,' the conrt would have given the subject consideration, and a proper order taxing the costs would undoubtedly have been made. Counsel cannot take exception, however, in the court of appeals, to any alleged errors which were not called to the attention of the court below.
Errors not called to the attention of the Trial Court not re-viewahie. Instructions —Exceptions must he •saved to he reviewahie.The first assignment of error in the record is to the effect that the court erred in its instructions to the jury, and in refusing the instructions requested by the defendant. This assignment was made after the motion for a new trial had been overruled. The record fails to disclose that any exception was taken to the court’s instructions at the time they were given, and it is now too late to assign error on account of such instructions. However, it does appear that the appellant requested certain instructions to be given, which were refused, and to the refusal to give such instructions exceptions were duly taken at the time.
The first instruction which appellant requested, and which was refused, is as follows: “That if the plaintiff retained possession of any of the property received by him from the defendant in exchange, and that said property, or the use of same, was of any value and benefit to him or to the defendant, then the plaintiff would not be entitled to recover, and you must find for the defendant.” This instruction should have been given by the court. It appears from the evidence in the case that appellant and appellees entered ■into á contract by the terms of which appellees sold to appellant a pair of mules, in consideration of a crop of corn and fcotton on certain premises described in the complaint. Ap-*582pellees were to have possession of the house upon the premises, but whether this was a part of the consideration of the contract is not clear. After the sale of the growing crop, and after appellees had entered possession of the house, and took possession of the premises, the landlord or owner of the place sued out an attachment against appellant for rent due him, and levied the attachment upon the growing crop which appellant had sold to appellees. Appellees took advantage of this seizure of the crop on attachment, and elected to rescind the contract; and, in the absence of appellant, sued out a writ of replevin for the mules. This writ of replevin was served upn the appellant, and appellees took possession of the mules. In the meantime appellant settled with his landlord, and the attachment was dis charged, and the property returned to appellees. Aftei the landlord had returned the property seized on attachment to appellees, one of the appellees met the appellant a a store in the town of Ardmore, and said to him that his property was down there where it was when the apellees got it, and for the appellant to go and take it. Notwith standing this tender of the property, the appellee continuec to reside in the house, and were residing in it at th< time of the trial. Appellant did not accept the ten der, and took no steps whatever to recover th< property. The appellees had, by living in the house, pos session of it, and, as contended by counsel, constructive pos session of the growing crops; and, after the writ of replevii was sued out, appellees also had possession of the pair o mules which had been sold to appellant in consideration o the premises. Section 163, Tied. Sales, is as follows: “Th principal remedy for fraud is the rescission of the contract The party defrauded has the right, on discovery of th fraud, to rescind the contract, and obtain relief from alH liability on the contract. But the rescission must extend tfl the whole contract. The contract cannot be rescinded ifl *583part, and affirmed in part. The r '.scission must be entire. [Citing Miner vs Bradley, 22 Pick. 457; Voorhees vs Earl, 2 Hill, 292; Coolidge vs Brigham, 1 Metc. (Mass.) 550, and authorities there cited.] It matters not at what stage of the execution of the contract the fraud was discovered; the contract can be rescinded, provided the parties can be put in statu quo. ” A large number of authorities are cited in a note to the text to support this principle. It is further stated in the same section from Tiedeman on Sales as follows: ‘There must also be a prompt and complete restoration of every thing of value which the party defrauded had received under the contract. [Citing numerous authorities.] If it is of any value to the other party, it must be returned. ” It appears in the evidence that a portion of the growing crops (a very small portion, it seems) had been consumed by the appellees before the fraud was discovered. No reparation for this property was tendered. The court, however, instructed the jury that the law does not concern itself with little things. No exception, however, was taken to this instruction. It is also well settled that if the parties cannot be restored to the condition in which they were before the execution of the contract, in consequence of the destruction or change of the condition of the property which formed the consideration of the contract, the party defrauded cannot rescind the contract. Wine Co. vs Brasher, 13 Fed. 603; Smith vs Brittenham, 98 Ill. 188. The defrauded party, however, instead of rescinding the contract, may affirm it, and then recover for the damages which he has suffered in consequence of the fraud,
Contract-Rescission. Contract— Iteci4 sion-Tender.The appellant requested the court to give the following instruction to the jury: “That if the plaintiff received from the defendant the crop of cotton, corn, and oats, together with the place on which the same was grown and possession of the house on said place, and that any of said crop was standing ungathered in the field at the time, *584and that the defendant had the right of possession of sab place until January 1, 1894, to gather his crop, then, befor the plaintiff could recover, after establishing fraud on th part of the defendant, he must show that he tendered bah to the defendant the possession of the place, and house an all other property received from the defendant in exchang of said mules, and that also, if at the time plaintiff claime to have discovered fraud on the part of the defendant any c said crop was standing ungathered in the field, then plair tiff could not make a valid tender of same, without tendei ing possession of the entire place on which the same wa standing at the time. ” This instruction was refused, and proper exception taken. In view of the facts of this case this instruction should have been given. At the time th trial took place in this case, the appellees were in possessio of the house which was a part of the premises upon whic were the growing crops. No part of the property given b appellant in exchange for the mules had been returned t him. The fraud which was set up as the ground for th rescission of the contract had been eliminated from th transaction by the appellant, who settled with the landlor for the rent, and caused the attached property to be returr ed to the appellees. In fact, the attached property ha never been moved. It was constructively in the possessio of the marshal, by virtue of the writ of attachment; anc when the landlord’s demand was paid by appellant, the a1 tachment was discharged; so that it appears from all th evidence in the case that at the time of the trial the appe lees, by virtue of the writ of replevin, had possession of th pair of mules which they had theretofore exchanged for th growing crops, and also had possession of the premises, an constructively the possession of the growing crops. Appe lant had at no time taken possession of the growing crops or exercised any ownership over them after his contrac with appellees. If the instructions which were refused ha *585>een given by the court, the jury, in all probability, would Lave found the issues for the defendant. The judgment of he court below is therefore reversed, and the case remanded, vith instructions to grant a new trial in the case.
Clayton, Thomas, and Townsend, JJ., concur.