(concurring) :
I concur in the result. Richards agreed to pay $3,000 for an undivided half of the property. One of the material inducements to the purchase ivas the fraudulent representation by Newell that he was to pay $3,000 for the other undivided half. To this fraudulent representation the plaintiff was a party. By reason of such fraud defendant could, upon discovery thereof, rescind and return what he had received upon the contract, or he could elect to ratify the sale and. counterclaim for damages suffered. While the property received has not been wholly returned, an offer to return the same was duly made and declined. This was sufficient. to enable defendant to defend the note upon a rescission duly made.
Cochrane, J., concurred.
■ Judgment reversed upon law and facts and new trial1 granted, with costs to appellant to abide event.