Concurring in Part and Dissenting in Part. — I concur with the majority in reversing the judgment, but for reasons other than those set forth in the majority opinion. This case was originally assigned to me for the purpose of writing the opinion of the court. The opinion prepared by myself was agreed to as the opinion of the court, sitting in division, although Mr. Justice Dunn concurred merely in the conclusion reached. Petitions for rehearing were filed, and because of the importance of the question involved, a rehearing ■ was unanimously agreed to. *438Having devoted some time to a study of the principal question involved in this case, I am persuaded to publish my views and comment briefly upon the majority opinion.
Under date of March 16, 1921, the vendors and Holverson made and entered into an agreement which recited and identified the original contract of sale, the assignment of Driscol’s interest in the contract of sale and all rights arising therefrom to respondent, and the failure of the vendees to make the November 1, 1920; payment and interest due on deferred payments. The contract then contained thé following:
“That for and in consideration of said party of the second part yielding up and delivering to the parties of the first part the complete and unconditioned possession of the above described premises, it is mutually agreed by and between the parties hereto that the said sale contract be, and the same is hereby rescinded, canceled, annulled and abandoned. ’ ’
On April 4, 1921, respondent commenced an action against appellants to recover the sum of $3,270, the amount paid on 'the contract for the purchase of the land. Appellants filed a demurrer, which was overruled. Respondent alleged the making of the sale contract, the payment thereon by him of $3,270, the assignment of Driscol’s interest to him, the mutual rescission of the sale contract, and the demand for the return of the amount paid on the original contract together with interest. The answer contained specific denials of the allegations of the complaint, and set up separate answers and affirmative matter by way of cross-complaint in an effort to recoup against any.judgment that respondent might obtain. The court struck from the affirmative defenses everything except the allegations relating to the rental value of the land and the value of certain personal property not returned to the vendors. The jury returned a verdict in favor of respondent for $3,072.48, and judgment for that amount was thereupon entered. This appeal is from the judgment.
*439In this case, certain questions of law are presented for consideration. Can there be a rescission of a contract for the sale of real estate where the purchaser is in default in his payments? The rules surrounding the making of a rescission contract are the same as those governing the making of any other contract, and the making of a rescission agreement is nothing more or less than the making of a new agreement. A purchaser of land in default because of a failure to make the payments on the purchase price cannot fail or refuse to make such payments and recover the in-stalments previously paid. Hall v. Yaryan, 25 Ida. 470, 138 Pac. 339, and cases therein cited.
“It seems to be equally well settled, on the other hand, that if the vendor rescinds the contract or makes a breach thereof, then and thereupon the vendee may accept* the rescission and recover the money he has paid under his contract; .... ” (Hall v. Yaryan, supra.)
The parties may also mutually agree to abandon and rescind the original contract without regard to whether or not either party is in default, in which event, in the absence of any specific terms of settlement, the law permits a recovery, by the vendee, of the payments made. This was done by the parties in this case. The vendees were in default, and the vendors, instead of availing themselves of their rights resulting from the default, made and entered into the contract of rescission, in which it was mutually agreed “by and between the parties hereto that the said sale contract be and the same is hereby rescinded, canceled, annulled and abandoned.” Upon the consummation of the cancelation agreement, the vendees became entitled to a return of the money paid the vendors. But for the fact, however, that these parties mutually rescinded and abandoned the original contract of sale, the vendees would have no standing whatever, under the facts in this case, to recover back the payments made by them upon the purchase price of the land. The effect of the mutual rescission was to nullify the existing contract completely and restore the parties to the relation that existed immediately before the *440original contract was made. The law intends, as the effect of a naked mutual rescission, that the parties be placed in their former situation. It follows, therefore, that upon mutual rescission, by the parties, of the contract for the sale of the land, the vendees became immediately entitled to repayment of what had been paid on the purchase price of the land. (Glock v. Howard & Wilson Colony Co., 123 Cal. 1, 69 Am. St. 17, 55 Pac. 713, 43 L. R. A. 199; Woodard v. Willamette Valley Irr. Land Co., 89 Or. 10, 173 Pac. 262; Connelly v. Malloy, 105 Wash. 464, 180 Pac. 469; Hurley v. Anicker, 51 Okl. 97, 151 Pac. 593, L. R. A. 1918B, 538.)
“If there is a mutual rescission of the contract, the purchaser is ordinarily entitled to recover back whatever he may have paid on the purchase price, even though he may have been in default at the time of such rescission, and it is held immaterial that the contract provides that on default in payments he shall forfeit his rights and all payments theretofore made.”. (27 R. C. L. 641, sec. 400 and cases cited.)
“Where the parties mutually agree to rescind the contract, there being no express stipulation with reference to the payment or payments already made thereunder, the law will imply a promise on the part of the vendor to refund such payment or payments to the purchaser, and the latter may maintain an action to recover back the same.” (39 Cyc. 2002.)
“Where a contract for the sale of land is rescinded by mutual consent, the rights of the parties under the contract are extinguished. Neither can base any claim thereon, or sue for a breach, or compel specific performance. The vendor acquires the equitable interest owned by the purchaser, and of course retains the legal interest formerly owned by himself; and of course he cannot, after such rescission, maintain an action for the purchase price. The purchaser is entitled to a return of the purchase money. So the vendor is ordinarily entitled to a fair rental value for the use and occupation of the lands less the value of the permanent *441improvements placed thereon by the purchaser and disbursements for taxes.” (39 Cyc. 1358'.)
“Upon the other hand, after the vendee’s breach of the covenant to pay, what are the vendor’s rights? First, to stand upon the terms of his contract, and sue for its breach under section 3307 of the Civil Code; second, still resting upon the contract, he may remain inactive, yet retain to his own use the moneys paid by the vendee, so that it is of no moment whether or not the contract declares that such moneys shall upon the breach be forfeited as liquidated damages; third, going into equity, still upon his contract, he may seek specific performance; or, finally, if his generosity prompts him so to do, he may agree with the vendee for a mutual abandonment and rescission, in which last case, and in which last case alone, the vendee in default would be entitled to a repayment of his money.” (Glock v. Howard & Wilson Colony Co., 123 Cal. 1, 69 Am. St. 17, 55 Pac. 713, 43 L. R. A. 199.) (Italics mine.)
Appellants contend, with great earnestness and ability, that the written agreement of rescission embraces the entire agreement between the parties, and that since the mutual rescission agreement does not provide for a refund to the vendee of the money paid to the vendors on the purchase price of the land, the vendee cannot now maintain an action for the recovery of such payments. In support of their theory, counsel cite the eases of Law Credit Co. v. Tibbitts, 160 Cal. 626, 117 Pac. 772; Tice v. Zinsser, 76 N. Y. 549, and Lowry v. Robinson, 3 Neb. (Unof.) 145, 91 N. W. 174.
The Tibbitts case comes nearer supporting appellantsf contention than any other decision brought to my notice. However, the rescission agreement in that case was wholly exe-cutory, and the rescission of the original contract for the sale of the land was conditioned upon the performance by the parties, within a stated time, of the terms of the rescission agreement. In the ease at bar, the rescission agreement was a naked, mutual, executed rescission which left nothing to be done by either party to effect a rescission. A read*442ing of the Tibbitts ease will show that in addition to the surrender of the land in order to effect a rescission, the vendee agreed to deliver, within ten days, certain furniture received from the vendor at the time she took possession of the -real property, and deliver the real as well as the personal property “without cloud of title or lien thereon by her imposed.” In that case, the court said:
“Here was a mutual agreement to rescind — expressed and reduced to writing — containing express terms of settlement and, it must be presumed, all the terms upon which the parties had agreed for the settlement of their controversy— an agreement not to be varied or added to by parol. The parties have here done for themselves what, in the absence of express agreement, the court must have done for them. They have adjusted their reciprocal rights by defining their respective obligations.”
The case of Tice v. Zinsser, supra, would also appear to support appellants’ claim, except for the interpretation the court placed on the rescission agreement. The court said:
“As a general r^ile, where there is rescission by mutual consent, or by the terms of the contract, or the act of the vendor, the vendee is entitled to recover whatever he has paid toward the purchase money.This general rule does not, however, apply where there is an agreement connected with the rescission which restricts its operation and effect. Here there was a mutual release in writing, by each of the parties, of all right, title and interest under md by virtue of the contract; and in this respect the case differs very materially from one where there is no limitation and the surrender is without any qualification.” (Italics mine.)
The ease of Lowry v. Robinson, supra, does not support appellants’ position. In that ease, there was a default and a mutual rescission upon the following conditions:
“ ‘The notes given under said contract to be surrendered; Lowry to surrender possession on or before May 9, 1898; said Lowry to remove the barn erected on part of SW.14 . . . . within one year from this date, and is to pay for the use of the ground at the rate of $5 per year.’ ”
*443The court commented on these conditions as follows:
“We are of opinion that the contract, setting out the conditions of the rescission or cancelation as it does, necessarily excludes other conditions, and that, as it does not provide for repayment of any part of the purchase money paid, it must be held that the parties did not intend or understand that there should be a repayment.”
The contract of rescission in the case at bar attempts to do one thing only — to rescind the original contract for the sale of the land. It leaves everything else open, and makes no reference to the return of the money paid by the vendee upon the purchase price, or to any other items which might properly have been embraced within its terms. It merely rescinds the original contract and leaves everything else to be adjusted by and according to law.
Since it is my view that the rescission agreement had the effect of restoring the parties to the relation they occupied, respectively, prior to the execution of the original contract, and that upon execution of the rescission agreement, the vendees became entitled to a return of the money paid the vendors, it is necessary to examine some of the other assignments of error.
Appellants complain of the action of the court in sustaining respondent’s motion to strike certain allegations of their amended answer and cross-complaint, by which they attempted to allege and establish a set-off against respondent. These allegations were based upon the alleged failure of the vendee to pay taxes and water charges, on account of damage resulting from the use of excess water in irrigation, loss of some fruit trees because of a failure to spray, and loss occasioned on account of depreciation in the value of the land. The court struck out all the affirmative matter except that relating to the rental value of the land and to compensation for certain personal property sold with the land to the vendees and which was not returned to the vendors.
Whatever right appellants ever had to recover of respondent because of his failure to make payment of taxes *444and water charges, on account of the use of too much water in irrigation, for' damage to fruit-trees because of a failure to spray, and for depreciation in the value of the land, grew out of and existed by reason of the original contract, and was “rescinded, canceled, annulled and abandoned” by the mutual rescission agreement. By the rescission agreement, appellants surrendered the foregoing as well as any other rights they had under the original contract. The stricken allegations are based upon the theory that the original contract is still in full force and effect. The mutual rescission of the original contract nullified appellants’ right to maintain an action for its enforcement or for damages for its breach. The rescission destroyed all the vitality of the original contract, and the relation of the parties, in so far as this ease is concerned, became as though they had never entered into the original contract. I am, therefore, of the opinion that the action of the trial court in sustaining the motion to strike such allegations was proper. (Lemle v. Barry, 181 Cal. 1, 183 Pac. 150; House v. Piercy, 181 Cal. 247, 183 Pac. 807; Chesley v. Soo Lignite Coal Co., 19 N. D. 18, 121 N. W. 73; 39 Cyc. 1358.)
In Black on Rescission and Cancelation, vol. 2, see. 535, the author, in treating of the results that flow from the mutual rescission of a contract, says:
“All breaches of the contract are waived by the rescission, and no action can be maintained for any such breach, nor upon any cause of action arising out of the abrogated contract, nor for damages for its nonperformance, nor for compensation for being prevented from performing under it.”
Appellants specify' as error the giving by the court of instruction No. 4, in which the court did not instruct the jury to allow appellants any offset, to which the jury might find appellants entitled, on account of the alleged fair rental value of the land. This was an issue in the case, and considerable testimony was adduced by the parties with respect thereto. This omission was not cured by the other instructions. Appellants were entitled to this offset, and they were entitled to have the court charge the jury to that *445effect. Without including a charge to the jury concerning the rental value of the land, instruction No. 4 does not state the rule of law applicable, and it cannot be presumed that the jury was not misled and that appellants were not prejudiced thereby.
There is no doubt that the majority is supported, in its admitted refusal to follow the law as laid down by a great majority of the courts, by the quotation from Professor Williston. It is of interest, however, to note that only one of the two decisions (both from New York) cited by Professor Williston in support of his view is based on the rescission of a contract for the sale of land, and that each of the two rescission agreements, out of which those cases arose, contained many terms of settlement which render the rule contended for here wholly inapplicable.
I submit, however, that the quotation in the majority opinion from Black on Rescission and Cancelation is not only in conflict with the statement of the rule quoted from Professor Williston, but that it is in harmony with the position taken by myself.
The majority holds that there is no reason for refusing to apply to this case “the well-settled rule against the admission of parol testimony to add to or vary the terms of a written contract.” I do not understand that there was any effort on the part of respondent to apply such a rule. This is in the nature of an action for money had and received. In order to recover, it was not necessary to add to or vary any contract. The action was not based on any written contract. The action was for the recovery of money paid by respondent to appellants, for which, on account of the mutual rescission of the contract for the sale of the land, respondent had received no consideration. The original contract was rendered wholly nugatory by the rescission agreement, and the rescission agreement certainly contained no reference to repayment to respondent. It is respondent’s contention, to which I agree, that the rescission agreement contained no terms of settlement whatever, in which case the rule of law I contend for applies, and re*446spondent is entitled to recover back his payments, less the rental value of the land. I see, therefore, no question of adding to or varying the terms of any contract.
The majority opinion states that the rule of law applicable is “the rule adopted by some of the courts that holds the vendor to an implied liability to refund in case of a mutual agreement to rescind a contract for the sale of real property.” With this rule, I am in thorough accord. It is what I am contending for. I have insisted all along that in this case we have simply a question of fact for determination, and that is whether the rescission agreement is a naked, mutual rescission, or whether it contains any terms of settlement. If the rescission agreement contain express terms of settlement, the parties have settled their rights, and the conclusion reached by the majority is correct. On the other hand, if the rescission agreement did not expressly determine the rights of the parties, in my opinion the majority view is wrong. And, since the majority takes the position that the rescission agreement determined the rights of the parties, it strikes me that the first position of the majority, in which they are supported by Professor Willis-ton, is unnecessary to a determination of the question before us.
I am authorized to say that Mr. Chief Justice Budge concurs with me in this opinion.