The opinion of the court was delivered by
Mahan, P. J.:The question, and the only question, presented in this case is whether a vendor can rescind a contract of sale of goods without offering first to return the benefits received by him under the contract. We are forced to answer this question in the negative, as did the trial court. Counsel for plaintiff in error say they recognize the general rule to this effect, as decided by the supreme court in Cookingham v. Dusa, 41 Kan. 229, 21 Pac. 95; Manufacturing Co. v. Moore, 46 id. 324, 26 Pac. 703. They contend, however, that there is an exception to the rule in cases of replevin for goods obtained by fraud where the fraud is not specifically pleaded, and cite in support thereof Symns v. Benner, 31 Neb. 593, 48 N. W. 472; Colville v. Besly, 2 Denio (N. Y.) 139, and Masson v. Movet, 1 Denio (N. Y.) 69. They say further in their brief that the true rule seems to be that the party defrauded must do what he can to place the other in statú quo. During the progress of the trial plaintiff offered to credit upon the notes the value of the property replevied, as appeared from the evidence, at one time, and at another offered to return one of the notes. It. will be observed that in both these offers defendant sought to retain some bene*98fit upon the contract. This it could not do. The law seems to be well settled that a party having a right to rescind a voidable contract must act promptly and return whatever benefits he has thereunder, but he must offer to rescind in toto'and not in part. No benefits can be retained. The rescission goes upon the theory that the contract no longer has any existence for any purpose. It is annulled for all purposes. This is the interpretation we give to what the supreme court said in Neal v. Reynolds, 38 Kan. 432, 16 Pac. 785. This doctrine is also announced in American and English Encyclopedia of Law, volume 21, page 91, supported by numerous authorities. See, also, same volume, pages 85 to 87, and authorities there cited in the notes. In support of this conclusion we cite the following additional,authorities : Wainwright v.Weske, 82 Cal. 193, 23 Pac. 12; Herman v. Haffenegger, 54 Cal. 161; Burge v. Cedar Rapids & Mo. R. R. Co., 32 Iowa, 103; The Farmers’ Bank of Virginia v. Groves, 12 How. (U. S.) 58, 59; Lyon v. Bertram et al., 20 How. (U.S.) 154, 155; Benj. Sales, §§415, 452, 888, and 889.
The judgment is affirmed.