The demurrer to the first defense set up in the answer herein must be overruled.
The necessity of notice upon the recission of a contract exists only, as I understand the law, when the party rescinding has. received some benefit or advantage from the contract, which he must surrender before he can claim to rescind. He must put the other party in the same position he occupied before entering into the contract.
But in a- case like the present, where neither party has taken any action whatever under the contract, and neither has made any demand upon the other for its fulfilment, the reason of the foregoing rule fails to apply. There is nothing to be done by either party to place the other in the same' condition he was in before the contract was made. Fraudulent representations which induce a party to enter into a contract, vitiate it from the beginning, and sutih party, when such representations are established, stands in the same position as though the contract had never been made, and is only required to make his objection when any claim is made upon him under such contract. The second ground of demurrer is well taken.
The allegation in the answer in brief is, that the plaintiffs commenced a suit in the Supreme Court against the defendants *331for the same cause of action, which resulted in a judgment in favor of the defendants.
If the allegation had stopped here the answer would have heen a good one. But it goes on and makes the judgment-roll in that action a part of this portion of the answer by annexing a copy of the same as a schedule. Upon an inspection of that roll, it appears that that action was tried before a jury, and that the judge dismissed the plamtiffs’ complaint, and that a judgment was entered upon such dismissal, such a judgment would be no bar to the commencement of a new action.
The demurrer as to this defense must therefore be sustained.
Ordered accordingly.