The referee made a general award in favor of the plaintiff; and it is to be assumed, nothing appearing to the contrary, that the referee found the facts necessary to warrant his award, the defendants fraud in the trade, the plaintiff's right for that cause to rescind the contract, and an actual rescission by the plaintiff so far as the question is one of fact. Contracts entered into on fraudulent representations are voidable at the election of the party defrauded, and may be rescinded on discovery of the fraud if the parties can be restored to their original position. The party seeking to rescind must ordinarily restore, or offer to restore, whatever he has received under the contract; and in case of the refusal of the wrong-doer to receive it, an offer to restore, properly made, is equivalent to actual restoration. Concord Bank v. Gregg, 14 N.H. 331; Sanborn v. Batchelder, 51 N.H. 426; Luey v. Bundy, 9 N.H. 298, 303; Manahan v. Noyes,52 N.H. 232, 237; Moody v. Drown, 58 N.H. 45.
In this case the plaintiff seasonably returned the money he had received from the defendant to the defendant's house, leaving it with his wife, and returned the horse to the defendant's pasture, and notified the defendant of what he had done. Having done this, he had done all that was required of him to rescind the contract; and the defendant having refused to deliver the plaintiff's horse when demanded, replevin lies for the wrongful detention. Laws of 1873, c. 21.
Judgment for the plaintiff on the report.
STANLEY, J., did not sit: the others concurred.