The right of rescission is frequently stated as if it were confined to simple contracts;6 and it is obviously inconsistent with the early common-law doctrines in regard to dissolution of sealed contracts to allow matter in pais to afford ground for their rescission.7 But in many jurisdictions in this country a seal no longer has its common-law effect, and it is probable that in most jurisdictions also where a seal still retains its old importance so far as to make consideration for a promise unnecessary, a contract under seal may be rescinded or avoided for breach of promise by one party at the suit of the other, and a recovery had by the latter on a quasi-contractual basis for what he has given or its value. This was so held in Ballou v. Billings.8 Holmes, J., in delivering the opinion of the court,

1See Woodward, Quasi-Coniracte, Sec.Sec. 266,267. Cf. the analogous question of rescission for fraud, infra, Sec. 1526.

2 Pleak v, Marks, 171 la. 551, 152 N. W. 63; Alfree Mfg. Co. r. Grape, 50 Neb. 777, 82 N. W. 11.

3 Goodman v. Pooock, 15 Q. B. 576; Routledge v. Hislop, 29 L. J. M. Cas. (N. S.) 90; Cole v. Hines, 81 Md. 476, 32 Atl. 196, 32 L. R. A. 455; Daley v. People's Assoc, 178 Mass. 13, 59 N. E. 452; Wolff v. Pickering, 12 S. C. of Cape of Good Hope, 429. Cf. Savage v. Canning, Ir. R. 1 C. L. 434.

4 Goodman v. Pocock, 15 Q. B. 576; Graham v. Holloway, 44 HI. 385.

5 Brown v. St. Paul etc. R. Co., 36

Minn. 236, 31 N. W. 941; Graves v. White, 87 N. Y. 463; Holman v. Updike, 208 Mass. 466, 94 N. E. 689.

6 See, e. g. Ankeny v. Clark, 148 U. S. 345,353,37 L. Ed. 475,13 Sup. Ct. 617, quoting from Smith's Leading Cases; Western v. Sharp, 14 B. Mon. 177; Weart v. Hoagland's Adm'r, 2 Zab. 517,519; Fay v. Oliver, 20 Vt. 118,122, 49 Am. Dec. 764; Brown v. Ralston, 9 Leigh, 532, 545; Festing v. Hunt, 6 Manitoba, 381, 384. See also supra, Sec.1456.

7 See supra, Sec. Sec. 1834 et seg.

8136 Mass. 307. To the same effect is Home v. Richards, 113 Me. 210, 93 AU. 290.

refers to earlier Massachusetts decisions which had decided that a contract under seal might be rescinded by parol, and adds, "Whether these cases would have been decided the same way in earlier times or not, we have no disposition to question them upon this point, and it is going very little further to hold that such a contract may be rescinded if it is repudiated by the other side."9 In other jurisdictions, however, such relaxation of common-law doctrines has not as yet been sanctioned.10

Sec.1471. Minor Inconsistencies

There are a few minor inconsistencies in applying or failing to apply the rule allowing restitution as an alternative remedy for breach of contract. Thus, one who has sold goods to another who has agreed to give a bill or note made by himself payable at a future day and who has failed to do so, cannot, it is generally held, recover in indebitatus assumpsit the value of the goods delivered until the stipulated period of credit has expired.11 Yet the failure to give the promised bill or note is surely a material breach, and the plaintiffs right to sue for the value of his goods has been recognized by some courts.12

9 This was allowed also in 1803 in Weaver v. Bentley, 1 Caines, 47, and see the following note. So money paid under a contract broken by the defendant was held recoverable in Briggs v. De Peiffer, 214 Mass. 52, 58, 100 N. E. 1065, and the court said: "And that is so even if it comes into the hands of the defendant under a written or sealed contract." See also Webster v. Enfield, 10 Dl. 298; American L. Ins. Go. p. MeAden, 109 Pa. 399, 1 Atl. 256.

10 Atty v. Parish, 1 B. & P., N. R. 104; Middleditch v. Ellis, 2 Ex. 623; McManus v. Cassidy, 66 Pa. 260. (But see American L. Ins. Go. v. Mo-Aden, 109 Pa. 399, 1 Atl. 256.)

Keener, Quasi-Gontracts (p. 308), draws the distinction from the cases cited above in this and the two preceding notes, that where money has been paid by the plaintiff it may be recovered from a defendant who is in default though the contract was under seal, but where services have been rendered or property other than money delivered the plaintiff's only remedy is on the contract, if ij. is under seal. Possibly the case of Greville v. Da Costa, Peake, A. G. 113, taken in connection with the English cases cited above, may lend some support to this view, but the American cases certainly do not seem to warrant the distinction.

On the one hand, in Weaver v. Bentley, the plaintiff, who had given notes, money, and farm stock, was apparently allowed to recover for the property as well as the money; and later New York cases make it evident that the law of that State made no such distinction. See Jewell v. Schroeppel, 4 Cow. 564; Allen v. Jaquish, 21 Wend. 628. Certainly, also, the court in Ballou v. Billings, 136 Mass. 307, indicate no intention to rest that case on the fact that the plaintiff had paid money instead of rendering services or delivering property, but rather broadly deeide that contracts under seal generally may be rescinded or avoided for breach. This was decided also in regard to a contract for work and labor in Webster v. Enfield, 10 111. 298. See also Wolf v. Schlacks, 67 111. App. 117, 118. A dictum by Redfield, J., in Myrick v. Slason, 19 Vt. 121, 126, points in the same direction. On the other hand, though the cases where the plaintiff was not allowed to recover were in fact actions for the value of services or property, there is nothing to indicate that the courts so* deciding would have treated the plaintiff better had he been suing for money paid. Indeed, a contrary inference seems justified. It is obvious that there is no merit in the distinction.

If a bill or note signed by a third person should have been given, it is generally admitted that the contract may be rescinded and action brought at once.

Another ruling inconsistent with the general principle is that a plaintiff cannot recover the money value of goods or services given to the defendant if by the contract he was to receive not money but land, goods or services.13 But here again there is contrary authority.14 These inconsistencies are unfortunate, as they not only are at variance with logical theory, but seem to rest on no adequate foundation of practical convenience. They should, therefore, where it is possible, be swept away by future decisions.

11 Mussen v. Price, 4 East, 147; Dutton v. Solomonson, 3 B. & P. 582; Manton v. Gammon, 7 111. App. 201 (cf. Diinsworth v. Wood Machine Co., 29 111. App. 23); Canon v. Allen, 6 Dana, 395; Hanna v. Mills, 21 Wend. 90, 34 Am. Dec. 216.

12 Stocksdale v. Schuyler, 29 N. Y. St. Repr. 380; affd., 130 N. Y. 674, 29 N. E. 1034; Tyson v. Doe, 15 Vt. 571; Foster v. Adams, 60 Yt. 392, 15 Atl. 169, 6 Am. St. Rep. 120. That breach of a contract to execute a promissory note payable in the future gives rise to an immediate right of action on the contract seems unquestioned. Deering v. Johnson, 86 Minn. 172,90 N. W. 363; Bowman v. Branson, 111 Mo. 343, 19 S. W. 634; Standard Lumber Co. v. Deer Park Lumber Co. (Wash.), 175 Pac. 578, 176 Pac. 332. See supra, Sec. 1411, ad fin.

13 Harrison v. Luke, 14 M. & W. 139 (cf. Keys v. Harwood, 2 C. B. 905);

Anderson v. Rice, 20 Ala. 239; Oswald v. Godbold, 20 Ala. 811; Eastland v. Sparks, 22 Ala. 607; Bernard v. Dickina, 22 Ark. 351; Baldwin v. Lessner, 8 Ga. 71; Hall v. Hunter, 4 G. Greene (la.), 539; Cochran v. Tatum, 3 T. B. Mon. 404; Slayton v. McDonald, 73 Me. 50; Pierson v. Spaulding, 61 Mich. 90, 27 N. W. 865; Mitchell v. Gile, 12 N. H. 390; Weart v. Hoagland's Adm'r, 2 Zab. 517; Osterling v. Cape May Hotel Co., 82 N. J. L. 650, 83 Atl. 887; Brooks v. Scott's Exec., 2 Munf. 344; Bradley v. Levy, 5 Wis. 400.

14 Sullivan v. Boley, 24 Fla. 601, 5 So. 244; Stone v. Nichols, 43 Mich. 16, 4 N. W. 545; Dikeman v. Arnold, 78 Mich. 455, 44 N, W. 407; Brown ». St. Paul Ry. Co., 36 Minn. 236, 31 N. W. 941; Clark v. Fairchild, 22 Wend. 576; Way v. Wakefield, 7 Vt. 223; Wain-wright v. Straw, 15 Vt. 215, 40 Am. Dec. 675; Butcher v. Cariile, 12 Gratt. 520. See Jackson v. Hall, 53 111 440

Sec. 1472 Rescission in the Civil law as a remedy for breach of warranty. It is interesting to observe in the Civil law the same tendency that is to be found in the common law. In the law of sales the Roman law, like the English, started with the doctrine caveat emptor. The seller was not liable for defective quality unless he made express representations in regard to the goods or warranted them.15 Under the Empire, however, it became established that certain material defects in the property sold would give rise to a right of rescission.16 It will be noticed that for such defects, which would be included in the common law under the head of implied warranties, the Roman law imposed no liability on the seller other than to take back what he had sold and return the price. The situation was looked upon as we should look upon a sale induced by mistake, rather than as a case where the seller had been guilty of a breach of contract. It was true in both the earlier and the later classical Roman law, however, that for mere breach of a contract in regard to the property, the buyer had no right of rescission.17 The modern Civil law has, however, widely extended the buyer's right of rescission. Not only has the seller the right in all Civil law countries to return goods sold with an implied warranty if they have material defects, but a failure of the goods to conform to representations or promises now generally gives the same right. In France rescission is allowed broadly as a remedy for breach of any mutual obligation,18 and the wide influence of French law on the legislation of other countries makes it probable that the law is similar in most countries on the Continent of Europe and in South America.19 In Germany the buyer has a similar right.20 The same tendency may be observed in another direction. The Indian Contract Act, though supposed to be gener-

15 Moyle, Sale in the Civil Law, 189.

16 Ibid, 194.

17 Ibid. 201; Hunter, Roman Law, 498; Laromhiere, Obligations (ed. 1885), III, 86.

18 See supra, Sec.Sec. 899 et seq.

19 See supra, Sec. 907.

20 See supra, Sec.Sec.908 et seq.; Burger-Hches Gesetzbuch, Sec.462. The provisions of the German Civil Code as to remedies for breach of warranties are as follows: "Sec.462. On account of a defect for which the seller is responsible under the provisions of sections 459, 460, the purchaser may demand annulment of the sale [i. e. rescission]. The purchaser may elect either the one or the other remedy, unless the law provides otherwise, as in the case of a sale of cattle, ally a codification of the English law of contracts, seems to go beyond the law of England in allowing rescission.21