or at least offer to restore, to the other whatever of value he has received from him by way of consideration for the contract; and, as a general rule, he cannot rescind unless the other party can be thus placed in statu quo. As stated by the supreme judicial court of Massachusetts: "If he elects to rescind the sale he must return and restore to the other party the whole of the consideration, whether money, goods or securities, received by way of consideration for the sale, which may be of any value to either party."2 § 915. Note of vendee or a stranger.-The other party's own note received by way of consideration, and remaining unnegotiated in the hands of the seller, forms somewhat of an exception to the rule, for it is sufficient if this be restored to him upon the trial; but the note of a third person forms 1 This rule does not require a restoration of expenses which the fraudulent vendee has incurred in furtherance of his fraudulent schemes, as, for example, the freight which he has paid upon the goods (Case Plow Works v. Ross, 74 Mo. App. 437; Chamberlin v. Fuller, 59 Vt. 247; Lee v. Simmons, 65 Wis. 523); or a tax which he has paid the government to get the goods out of a United States bonded warehouse. Guckenheimer v. Angevine, 81 N. Y. 394. But it is otherwise where the payment was made on the account of the seller, as where it was agreed that the buyer, on paying the freight, might deduct it from the purchase price. Parks v. Lancaster (Tex. Civ. App.), 38 S. W. R. 262. 2 Thayer v. Turner, 8 Metc. (Mass.) 550. To same effect: Kimball v. Cunningham, 4 Mass. 502, 3 Am. Dec. 230; Conner v. Henderson, 15 Mass. 319, 8 Am. Dec. 103; Burton v. Stewart, 3 Wend. (N. Y.) 236, 20 Am. Dec. 692; Thurston v. Blanchard, 22 Pick. (Mass.) 18, 33 Am. Dec. 700; Perley v. Balch, 23 Pick. 283, 34 Am. Dec. 56; Fay v. Oliver, 20 Vt. 118, 49 Am. Dec. 764; Babcock v. Case, 61 Pa. St. 427, 100 Am. Dec. 654; Schwartz v. McCloskey, 156 Pa. St. 258, 27 Atl. R. 300; Brown v. Norman, 65 Miss. 369, 4 S. R. 293, 7 Am. St. R. 663; Berry v. Insurance Co., 132 N. Y. 49, 30 N. E. R. 254, 28 Am. St. R. 548; Thompson v. Peck, 115 Ind. 512, 18 N. E. R. 16, 1 L. R. A. 201; Vance v. Schroyer, 79 Ind. 380; Haase v. Mitchell, 58 Ind. 213; Potter v. Titcomb, 22 Me. 300; Tisdale v. Buckmore, 33 Me. 461; Herman v. Haffenegger, 54 Cal. 161; Bishop v. Stewart, 13 Nev. 25; Smith v. Smith, 30 Vt. 139; Crossen v. Murphy, 31 Oreg. 114, 49 Pac. R. 858; Frink v. Thomas, 20 Oreg. 265, 25 Pac. R. 717, 12 L. R. A. 239: Merrill Chem. Co. v. Nickells, 66 Mo. App. 678; Friend Bros. Clothing Co. v. Hulbert, 98 Wis. 183, 73 N. W. R. 784 (citing other Wisconsin cases). 3 Seller need not restore the buyer's note, given for goods fraudulently purchased, before rescinding the sale and suing for the goods whether the no exception and must be restored at the time of the rescission.1 § 916. Things of no value.-The rule stated requires the restoration of that "which may be of any value to either · party," and it is therefore unnecessary to restore an article note be negotiable or not, if it remains turn the note to C. Pangborn v. in the seller's hands and is produced Ruemenapp, 74 Mich. 572, 42 N. W. at the trial. Thurston v. Blanchard, R. 78. 22 Pick. (Mass.) 18, 33 Am. Dec. 700. To same effect: Nichols v. Michael, 23 N. Y. 264, 80 Am. Dec. 259; Dayton v. Monroe, 47 Mich. 193; Skinner v. Michigan Hoop Co., 119 Mich. 467, 78 N. W. R. 547; Wood v. Garland, 58 N. H. 154; Coghill v. Boring, 15 Cal. 213; Ladd v. Moore, 3 Sandf. (N. Y.) 589; Crossen v. Murphy, 31 Oreg. 114, 49 Pac. R. 858; Sloane v. Shiffer, 156 Pa. St. 59, 27 Atl. R. 67; Wilcox v. San José Fruit Packing Co., 113 Ala. 519, 21 S. R. 376, 59 Am. St. R. 135. Contra. Farwell v. Hanchett, 120 Ill. 573, 11 N. E. R. 875, is contra, although in the earlier case of Ryan v. Brant, 42 Ill. 78, the other rule was approved. Under the Illinois statute a tender of the note on the trial will prevent judgment for defendDoane v. Lockwood, 115 Ill. 490, 4 N. E. R. 500. Where the note of the debtor is deemed prima facie payment of the debt the note must be returned before rescission. Thompson v. Peck, 115 Ind. 512, 18 N. E. R. 16, 1 L. R. A. 201. ant. If the note of the purchaser and a third person is taken it must be restored before rescission. Moriarty v. Stofferan, 89 Ill. 528. Where A sold B's horse to C as the horse of A, taking C's note to the order of A, and A indorsed it over to B, it was held that if B would rescind for false representations made by C to A, he must, at the time, re 1 Coolidge v. Brigham, 1 Metc. (Mass.) 547; Cook v. Gilman, 34 N. H. 556; Baker v. Robbins, 2 Denio (N. Y.), 136; Whitcomb v. Denio, 52 Vt. 382; Spencer v. St. Clair, 57 N. H. 9, unless he can prove the note to be absolutely worthless. Estabrook v. Swett, 116 Mass. 303; Duval v. Mowry, 6 R. L. 479. And this exception is denied unless there is some other evidence of worthlessness than the maker's insolvency. Crossen v. Murphy, 31 Oreg. 114, 49 Pac. R. 858. See also Frost v. Lowry, 15 Ohio, 200. In an action against part of a num ber of wrong-doers they cannot complain that a note executed by another of the number, not sued, was not returned. Stubly v. Beachboard, 68 Mich. 401, 36 N. W. R. 192. In an action of replevin against the vendee's transferee with notice of the fraud, it was held that the defendant could not raise the question whether plaintiff had returned to the vendee his note received from him. Stevens v. Austin, 1 Metc. (Mass.) 557. A stranger to the contract when sued for the goods cannot complain that the purchaser's note was not returned to him if the latter does not object. Frost v. Lowry, 15 Ohio, 200. To same effect: Schoonmaker v. Kelly, 42 Hun (N. Y.), 299; Pearse v. Pettis, 47 Barb. (N. Y.) 276; Manning v. Albee, 11 Allen (Mass.), 520; Bassett v. Brown, 105 Mass. 551. which is clearly worthless, such as a counterfeit bill,' a forged' or worthless note, a worthless machine, and the like." "But it is not sufficient," says the same learned court, in speaking of this rule, "that they are of no intrinsic value, or of no market value. If they are capable of serving any purpose of advantage by their possession or control, or if their loss was a disadvantage to the other party in any way, he is entitled to have them returned."6 § 917. When defendant not interested. An exception to the requirement of restoration exists also where the action is against a third party, who has taken the goods with notice of the fraud or not in good faith for value, and who has no interest in the return of the consideration." § 918. Restoration impossible or inequitable-Goods damaged or partly sold. Restoration of an article in its original condition may also be excused where, by natural causes or reasonable or contemplated use, the value of the property is diminished; or where it is necessarily destroyed in discovering the fraud or in making such a use or test of it as the parties contemplated should be made; or where return is rendered impossible by the act of the defrauding 8 1 Kent v. Bornstein, 12 Allen (Mass.), 342. So of counterfeit United States bonds, redeemed by the United States after the sale. Brewster v. Burnett, 125 Mass. 68, 28 Am. R. 203. See also Perley v. Balch, 23 Pick. (Mass.) 283. 2 Haase v. Mitchell, 58 Ind. 213. 3 Mahone v. Reeves, 11 Ala. 345. 4 Dill v. O'Ferrell, 45 Ind. 268. 5 See also Sanford v. Dodd, 2 Day (Conn.), 437 (a worthless deed). 6 Bassett v. Brown, 105 Mass. 551. "This rule is held with great strictness in actions at law," said the court, "as in the case of the casks that contained worthless lime (Conner v. Henderson, 15 Mass. 319, 8 Am. Dec. 103), and the sack that covered the rejected bale of cotton. Morse v. Brackett, 98 Mass. 205, and 104 Mass. 494." 7 Manning v. Albee, 11 Allen (Mass), 520; s. c., 14 Allen, 7, 92 Am. Dec. 736; Stevens v. Austin, 1 Metc. (Mass.) 557; Bassett v. Brown, 105 Mass. 551; Frost v. Lowry, 15 Ohio, 200; Schoonmaker v. Kelly, 42 Hun (N. Y.), 290; Pearse v. Pettis, 47 Barb. (N. Y.) 276. See also the last note to preceding section, § 915. 8 See Brown v. Norman, 65 Miss. 369, 4 S. R. 293, 7 Am. St. R. 663; Gatling v. Newell, 9 Ind. 572. 9 Pacific Guano Co. v. Mullen, 66 Ala. 582; Gatling v. Newell, 9 Ind. 572. party. And it has been held unnecessary to return a part payment where the vendee has damaged the property to an amount greater than such payment," or where such restoration would otherwise be inequitable or unjust, as where the buyer has already disposed of more goods than he has paid for. 1 Gates v. Raymond (1900), 106 Wis. 657. 82 N. W. R. 530; Masson v. Bovet, 1 Denio (N. Y.), 69, 43 Am. Dec. 651; Guckenheimer v. Angevine, 81 N. Y. 394; Hammond v. Pennock, 61 N. Y. 145; Faulkner v. Klamp, 16 Neb. 174, 20 N. W. R. 220. See also Friend Bros. Clothing Co. v. Hulbert, 98 Wis. 183, 73 N. W. R. 784; Gay v. Os borne, 102 Wis. 641, 78 N. W. R. 1079. The mere fact, however, that, before discovery of the fraud, the vendor has parted with all or a part of the consideration, will not relieve him of the necessity to restore it. He must regain possession of it and tender it, or otherwise place the vendee in statu quo. Hemphill v. Miller, 75 Ill. App. 488; Smith v. Brittenham, 98 IIL 188. 2 Phoenix Iron Works Co. v. McEvony, 47 Neb. 228, 66 N. W. R. 290, 53 Am. St. R. 527. 3" That a party seeking rescission of a contract must return, or offer to return, what he has received under it, and thus put the other party as nearly as is possible in his situation before the contract, is the law. But this rule is wholly an equitable one; impossible or unreasonable things, which do not tend to accomplish equity in the particular transaction, are not required." Sloane v. Shiffer, 156 Pa. St. 59, 27 Atl. R. 67. In this case goods were, through fraudulent representations, obtained from time to time during an interval of six months. For about two-thirds of the goods notes had been given. Some of the earlier notes were paid, but at the time of the discovery of the fraud the others and the open account were unpaid. The seller rescinded and, on the trial, tendered back the unpaid notes. It appeared that the purchasers had realized more for goods which they had sold before the rescission than they had paid on the notes, and it was held that the sellers were not bound to return the amount of these payments. So in Schofield v. Shiffer, 156 Pa. St. 65, 27 Atl. R. 69, growing out of the same transactions, it was held that where goods are sold under fraudu lent representations, and all are delivered under one contract of sale, the sellers may rescind without tendering back to the vendees the por tion of the purchase-money paid where it appears that the value of the goods reclaimed does not exceed the balance due the sellers. And so where the vendee has sold part of the goods to innocent third parties, the vendor, on rescission, may retain of the consideration an amount equal to the value of the goods so sold, and may restore the residue. Tootle v. First Nat. Bank, 34 Neb. 863, 52 N. W. R. 396; Symns v. Benner, 31 Neb. 593, 48 N. W. R. 472; Crane Boot & Shoe Co. v. Trentman, 34 Fed. R. 620. Severable contracts-Application of payments.-Where sales are made upon credit at different times through a period of several months, each sale may be treated as distinct for the $919. Restoration in actions of trover.- So, where the object of the seller's action is not, as in replevin, to obtain the specific goods themselves, but rather, as in trover, to obtain their value in money, it has been held that the plaintiff is not bound to restore part payments in money which he had received from the purchaser, but that the same may be deducted from the amount he would otherwise be entitled to recover. And the court in Rhode Island, in recent cases, en purposes of restoration; and where the payments made do not exceed the amount of the first sale, all may be deemed as applying upon that purchase unless at the time the payor made a different application. The subsequent sales may therefore be rescinded without restoring any of these payments. Friend Bros. Clothing Co. v. Hulbert, 98 Wis. 183, 73 N. W. R. 784. Rescinding compromise-Seller not obliged to return his own goods. So, where the buyer of goods intended to defraud the seller, and with like intent makes a compromise with him in pursuance of which he returns part of the goods and agrees to pay for the residue, the seller, on rescinding this compromise for fraud, is not obliged first to restore to the buyer the goods so returned by him. Munzer v. Stern (1895), 105 Mich. 523, 63 N. W. R. 513, 55 Am. St. R. 468. 1 Warner v. Vallily, 13 R. I. 483. See also Ladd v. Moore, 3 Sandf. (N. Y.) 589; Schoonmaker v. Kelley, 42 Hun (N. Y.), 290; Crossen v. Murphy, 31 Oreg. 114, 49 Pac. R. 858. 2 Sisson v. Hill (1893), 18 R. I. 212, 21 L. R. A. 206, 26 Atl. R. 196. Said the court, per Matteson, C. J.: "This is an action of replevin to recover goods which the plaintiffs allege that the defendant fraudulently obtained from them under the guise of con tracts of sale. The only goods with which we are concerned in the present inquiry are those obtained on September 25, 1891. For these the defendant paid the plaintiffs $50 in cash, and also gave them certain notes. The plaintiffs returned these notes to the defendant before bring. ing the suit, but they retained the money, claiming at the trial that the goods replevied were less in amount than the goods obtained from them by $100. The court below instructed the jury that, if the plaintiffs elected to rescind the contract of sale of September 25, 1891, they should have returned both the money and the notes before suit, and that, having failed to return the money, they could not recover the goods. The plaintiffs excepted to this instruction, and now petition for a new trial on the ground that it was erroneous. There are undoubtedly numerous cases which support the instruction. We have no disposition to find fault with the application of the rule to cases of executory contracts of sale, in which a party seeks to rescind the contract on the ground of the failure of the other to fulfill his part of the contract, and which it is said in Duval v. Mowry, 6 R. I. 479, 487, constitute most of the cases in which a return has been held necessary before an action can be brought. This court, |