The fraud perpetrated by the plaintiff, in falsely stating the cost of the fixtures, gave the defendant the legal right to rescind the contract. It is contended, however, on the part of the plaintiff, that the rescission was not complete, because he was not restored to his original position, in that he lost the occupation of the store. He was at most a tenant at will of Roberts, and had only his parol promise that he might remain in possession. The condition in the bill of sale, that the conveyance should take effect provided the defendant should obtain a lease upon terms satisfactory to himself, was ostensibly inserted for the benefit of the defendant. The plaintiff had no title which he could assign, nor possession which he could transfer so as to make the transferee more than a tenant at sufferance of Roberts. When the defendant rescinded the contract, he not only made no attempt to disturb the plaintiff in his possession, but refused to receive possession from him. The plaintiff voluntarily abandoned the possession when he left the key at the defendant's store.
It is claimed that the defendant, in order to have fully restored the plaintiff to his original position, should have offered to assign the lease to him, or should have returned it to Roberts to be cancelled. But (if the lease was assignable, which does not appear) it is apparent that an assignment of it to the plaintiff would have placed him in a better position, as he would then have had possession for a term of years instead of occupying as tenant at will; and it is not certain, and perhaps cannot now be known, whether Roberts would have accepted a surrender of the term. The defendant's legal right to rescind did not impose on him the legal duty of restoring the plaintiff to any better position than that he originally occupied, or to offer to do more than he would have done if the plaintiff had truthfully stated the cost of the fixtures. If his offer to pay seventy-five per cent. of the sum for which the note was given (the price which the plaintiff paid Carleton) was not an offer to restore the plaintiff to the position he stood in when he fraudulently induced the defendant to enter into the contract, he is estopped to assert the contrary by his agreement to sell for that price. Whether the plaintiff is otherwise estopped, is a question which need not be considered. He cannot recover upon the note.
Whether the plaintiff upon a quantum meruit count can recover the value of the fixtures is a question not raised by the case.
Case discharged.
CARPENTER, J., did not sit: the others concurred. *Page 8