(dissenting). I cannot concur in the views of my Associates in this case. The complaint contains every allegation essential to a recovery of the purchase price of property inassumpsit, uploin :a rescission of a contract for fraud, and the ‘trial court found every fact which in law is essential to such a recovery. The majority opinion holds, in effect, that wheie the plaintiff has offered to return everything received under a fraudulent contract — in short, to do every act necessary to complete a -rescission — there has been “no accomplished rescission of the purchase.” If this means anything it means that the refusal of a dishonest defendant to accept a return of the property “ue*66feats the accomplishment of a -recission.” A conckis-ion founded upon such a misconception of the law cannot be correct. ' The majority opinion, however, reaches the right -result, because of the fact shown by the record, that plaintiff, after offering to retan: it, continued to use the property and to exercise a-cts of -ownership over it, which acts constituted a waiver of the rescission. Mizell v. Watson, 57 Fla. III, 49 South, 149.
My majority Associates I think are wrong in assuming, in the face of the pleadings .and findings of the trial court, that the action, was, or could be transformed into, an action- for damag-es for -deceit, and then -holding the evidence insufficient to sust-a.in a recovery. The complaint alleges the making of the contract ; that plaintiff w-as induced to- enter into it -by false representations s-tated, and “that promptly upon the discovery of the falsity o-f such representations, this plaintiff -offered to rescind the said purchase and tender back to the defendant all of the said personal propenty, and -demanded of him that he should re-pay to- th-i-s plaintiff -the s-aid sum of four hundred forty (440) dollars, but the defendant wrongfully, wilfully, and fraudulently refus-e-d, and still refuses, to receive back the s-aid personal property, or to repay the said money to this plaintiff,” and alleges as her damages the amount paid -as the purchase price of the property.
The answer denies the fraud and the offer to- rescind. The trial -court found that the representations -alleged were falsely and fraudulently made -by defendant, and that plaintiff was induced thereby ¡to enter into the -contract, and “that promptly upon the discovery of the falsity of -such representations with reference -to the said personal property and the fertile agricultural lands above mentioned plaintiff offered- to rescind the’ said purchase, and tendered back to the defendant all o-f the said personal property, .and demanded of him that h-e -should repay to the plaintiff the said sum of $440, -but the defendant wrongfully, fraudulently, and unlawfully refused, and- still -refuses, to receive back the said personal property, or to repay the said money to the plaintiff,” and that plaintiff w-as entitled to recover $440, the purchase price, with interest ait 7 per cent, from the date it was paid to defendant. If this i-s not an action, as in assumpsit founded upo a a rescission of a fraudulent contract, for recovery -of the purchase price, as -disclosed both by the pleadings and the findings *67of the trial count, I must confess dense ignorance as to wtóáit such an action is. Nor do I see any necessity whatever for deciding a case upon, and adopting in this court, a theory which plainly was not in the pleadings of the parties, nor in the mind of -the trial court.