(dissenting). This is an action to rescind a contract for the purchase and sale of a quarter section of land which is about 10 miles from Mott, in Hettinger county, North Dakota. (N. E. ^ 14-134 — 92.) In May, 1917, the plaintiff contracted to buy the land at $39 an acre and to pay (as he did) $1,000 cash and the balance at stated times, with interest, and to pay the taxes for the year 1917, and during that year the defendant reserved to himself the use of the land. And thus the sale price ivas about $45 an acre. ■
The complaint avers that to induce the plaintiff to make the contract and to pay $1,000 cash, R. A. Grant falsely misrepresented the nearness of the land to Mott and Burt, the nearest market towns; and that it was all good farming land, with no gumbo or stones, and that it had a good well, and that it was worth $40 an acre; and that all adjacent land was selling at $40 an acre; that plaintiff relied on said representations, which were wholly false. The well did not contain water fit for use, and there was on the land much stone and gumbo, and it was not worth over $25 an acre.
In the brief of counsel for plaintiff, it is said that, at the time of contracting, plaintiff was a mere boy, in his early twenties, and he resided at Madison, South Dakota. That in May, 1917, plaintiff arrived at Mott with a confederate of Grant, was given a sumptuous dinner, and talien on a car to overlook the country and to see the land. That about dusk Grant drove hurriedly along one side of the land, falsely assuring the plaintiff that it was all the same as that along-the road; that it had a good well and was free from stones or gumbo, and that it was only 8 miles from Mott, when in truth it was 10 miles from Mott. It had several acres of stone and gumbo land, and the well was unfit for use.
The answer denies any fraud or misrepresentation, and avers that the defendants have been damaged by reason of the sale in the sum of $3,000 or more. It demands a rescission of the contract and a forfeiture of the $1,000. The action was commenced in due time, to wit, November 13, 1917. On March 15, 1917, judgment was entered, and *553on March 20th, defendants appealed. Though it is not alleged in the answer, the court found, that the parties had made a written agreement as follows:
September 24, 1917.
I hereby agree to surrender to R. A. Grant contract for deed which I hold, conveying the northeast quarter of 14-132-92 upon payment of $200, and R. A. G'rant agrees to surrender all notes given with said contract, and to pay $200 on or before December 1, 1917, if not put to further expense in connection with ,the settlement.
[Signed] Adolph Eaad
E. A. Grant.
The judgment is that the contract be canceled and that Grant pay the $200. The conditional promise to pay $200 amounts to nothing; it was not in accord and satisfaction; it was repudiated by Grant, and it was not pleaded, and it should not have been received in evidence. The judgment should have been in favor of the plaintiff for a rescission of the contract and a return of the $1,000, with interest, or it should have been for the foreclosure of the contract by a sale of the land, or by giving the plaintiff a reasonable time to make his payment in accordance with the contract.
It is true the contract contains the clause that in case the purchaser fails to make any payment the contract shall, at the option of Grant, be canceled, and all payments shall be forfeited and retained as damages; but the province of equity is to grant relief from penalties and forfeitures, and not to enforce them. “The rule is practically absolute that equity will not lend its aid to enforce either a penalty or a forfeiture.” 16, Cyc. 75, 80.
A party to a contract may rescind the same in the following cases: 1. If the consent of the party rescinding was given by mistake or obtained by fraud or undue influence. Comp. Laws, § 5936. Undue influence consists: a. In the use by one in whom confidence is reposed by another, of such confidence for the purpose of obtaining an unfair advantage over him. K In taking an unfair advantage of another’s credulity or weakness of mind. c. A contract by a minor between eighteen and twenty-one years may be rescinded or disaffirmed as of course, on returning the consideration.
*554The young are credulous and trusty. They make quick friendships and are very liable to imposition. The law is not disposed to look with favor on overreaching and unscrupulous contracts. It is not more important to protect the physically weak against assaults of the strong and powerful, than to protect the mentally weak or credulous against the cunning devices of the artful and unscrupulous.
While the record does not present a statement of the case> there are facts which do speak. The plaintiff is lacking in years and in shrewdness, and his counsel is a young lawyer just commencing the practice. Defendant is a shrewd land trader, and he has no burden of scruples. In May, 1917, he received from the boy plaintiff $1,000 on a sharp and overreaching land contract, and he has shown himself perfectly willing to keep the land and the money. He has always retained possession of the land, and has never given the plaintiff any value for his money. He has induced the plaintiff to sign a paper releasing his claim to the land and the money for a mere conditional promise to pay him $200, and now, without offering to pay $1, he is willing to retain the land and the $1,000 of plaintiff’s money.
The court may well take official notice of what is generally known concerning the average rainfall, the crop, and land values in Hettinger county. Twenty-five dollars to $30 an acre is a good price for any ordinary quarter section of land. Expert opinion fixes the average valuation at $17.62. In township 134 of range 92, the assessed valuation per acre is $3.92, and most of the land in that township is nearer market and better located than section 14. Manifestly there was a mistrial and a gross miscarriage of justice. Hence, the judgment should be reversed and a new trial granted.
This case has been decided without any conference and the result of the majority opinion is to permit a robbery to the amount of $800.