(dissenting). In this case the plaintiff seems to have been in the distress of Esau when he sold his birthright for a mess of pottage. By taking advantage of his necessity and distress, Cashier Newberry obtained his signature to a paper consenting to the sale of his land at $25 an acre. The next day he obtained a deed of the land, and the next day, November 21, 1914, Newberry sold the land to one Ganske at $29.50 per acre. In the course of time he allowed the plaintiff $8,000 or $25 an acre. The claim of plaintiff is that New-berry was his creditor and banker and confidential adviser; that the deed to him was made in trust, relying on his promise to sell the land and to pay to the plaintiff the entire purchase price, less the liens and mortgages. The jury found a verdict in favor of the plaintiff for $1,440, the balance due on his land at $29.50 an acre. Contrary to the verdict the court gave judgment for defendant, and plaintiff ap*531peals. The verdict is well sustained by the positive evidence and by the facts and circumstances. The plaintiff was largely indebted to Newberry, or his bank, on 12 per cent paper, and the cashier was pressing him for payment. Plaintiff testifies: “In the early morning, when he was milking, Banker Newberry came in his auto and went to the barn and said that he had a buyer for the land. He had a piece of paper and wanted me to sign it. I said, 'twenty-five dollars an acre is too cheap.’ He said, 'Whatever the land sells for after paying the debts will be turned over to you.’ I signed it. Next Saturday I saw Banker Newberry at the bank, and he told me he wanted the deed to the land. I asked him the price. He would not tell me. I signed the deed and left it with him. He gave me no papers. In January he said he would not settle until Gahske settled up. He said he would not do anything before the 15th day of March, when Ganske was to pay up. After March 15th, I-had McCue go to the bank to get a settlement. I got no settlement. Newberry never paid me one penny.”
The testimony of the plaintiff is well supported by the facts and circumstances. If the deed to Newberry had been an absolute sale at $25 an acre, the proper thing for him was to have made a settlement with plaintiff at the time of receiving the deed. That was the time for him to settle and to turn over to plaintiff his 12 per cent paper, release the mortgages, and pay to him the balance. That is just what Newberry or any honest banker would have done had he bought the land at $25 an acre. The jury believed, .and had a right to believe, the testimony of the plaintiff in regard to the price of the land, and the court had no right to order judgment contrary to the verdict.
In March, 1915, the plaintiff commenced an ill-advised action against Newberry to annul and cancel the deed, and to rescind the deal with Newberry. The complaint stated facts to show that for a long time Newberry had been the banker and adviser of the plaintiff, and held a large amount of securities against him; that plaintiff had reposed confidence in Newberry; that the deed was obtained by undue influence and by taking a grossly unfair advantage of the plaintiff’s necessity and distress.
However the rescission suit was a mere blunder. In any view of the ease the deed to Newberry gave him an absolute power to sell the *532land and to account for the proceeds, and under that power he had sold the land for $29.50 an acre, Ganske, the purchaser, was not made a party to the suit, and for that reason the court justly held that it had no jurisdiction over Ganske or his contract, and dismissed the action.
Then this action was commenced to recover $1,440, the balance of the purchase price, and the jury found in favor of the plaintiff. But counsel for Newberry contends that, by the false action to rescind the contract and cancel the deed, the plaintiff waived the right to an action to recover the purchase price of the land. And strange to say that view appeals to our judges. They say: “This action is brought for the purpose of recovering the difference between the price recited in the option of November 19th, of $25 an acre, and the price at which the land was sold to Ganske, namely, $29.50 an acre, which difference amounts to $1,440. The complaint is founded upon an alleged agreement of defendant to pay or account to the plaintiff for whatever sum was received for the land in excess of $25 an acre. Appellant contends that the bringing of the rescission suit was not an election of remedies, and that it does not preclude him from bringing this' action.” Then the judges hold that the action for rescission of the contract is a bar to this action. Under such a ruling if the plaintiff had not received a dollar for his land, a suit to rescind his deed would bar him from ever recovering the price. To me that seems perfectly absurd. Indeed it seems a shame to accuse our judges of making such a decision.
When an action to rescind a sale is dismissed, it is dead and buried, and it can serve no purpose except to bar another action for the same identical cause. There is no rule or principle of law that a vendor of land may forfeit the price of the same, or any part of the price, by a false action or an attempt to rescind the sale. An action to rescind a sale is an action in equity, and is triable by the court or judge; and an action to recover the price of land is an action to recover money only, and it is triable by a jury. The one is not a bar to -the other. In this case it was not permissible to unite the two causes of- action because they did not affect all the necessary parties to the action. While Ganske was a necessary party to one cause of action, he was no party to the other cause.
Both of the actions in question were commenced and prosecuted by McCue, the ex-attorney general. He holds a certificate from this *533court that he may safely be trusted to practise law. Now, if McCue was so unwise as to forfeit $1,440 of his client’s money by prosecuting an action to rescind a sale, someone should make good the loss. If the judges gave McCue a false certificate, it is for them to' make it good by paying the money, or directing McCue to pay it or to show cause why he should not be disbarred for incompetency. McCue neglected to argue this case. He was too confident. Now his duty is to move for the rehearing, and to set himself and the judges right or to pay the $1,440.