The alternative remedy of rescission and restitution is in its origin equitable, though now relief can generally be obtained at law. If the defrauded party has parted with nothing, but has merely entered into an executory obligation by simple contract it needs no citation of cases to establish the point that he may plead the fraud as a defense. If the obligation was under seal, this was not allowed in England prior to the Common Law Procedure Act of 1854;28 and the early law in the United States was the same.230 It was necessary to apply to equity for an injunction. As an unconditional perpetual injunction would be granted,286 it followed that as soon as equitable pleas were allowed at law the defense became available without application to equity. If the defrauded person has parted with property which he wishes to regain, he is compelled to become an actor. Where the property is of a sort requiring formal transfer of title, as land or shares of stock, it will generally be necessary for him to get the aid of a court having equity powers in order to bring about a restoration of the former status. The test of equity jurisdiction is the inadequacy of available remedies at law.23,c But, as previously shown,24 in the case of chattel property a defrauded seller may regain title by trover or replevin or without the aid of a court; and a defrauded buyer may sue at law for the price which he paid.25 It is not necessary that actual damage shall have resulted from fraud in order to justify rescission. 26 The transaction if rescinded must be rescinded as a whole.27 Therefore, it is generally held that a seller who has sold goods on credit cannot, because the sale was induced by fraud, sue for the price before the period of credit has expired.28 In some jurisdictions, however, either on the ground that the agreement for credit is a separate collateral agreement, or for some other reason, immediate recovery is allowed.29 Though it seems impossible to support the maintenance of an action on the contract for the price before the period of credit has expired, there seems good ground for allowing the plaintiff at once to rescind the contract and, instead of suing in trover, to waive the tort and sue in assumpsit, not for the price of the goods but for their value.30 The same reasoning as that applied to the case of sales has led to the conclusion that where one is fraudulently induced to contract to work for a specific sum, and has done the work he can recover in indebitatus assumpsit only according to the terms of the contract.31
21 In Cohoon v. Fisher, 146 Ind. 583, 44 N. E. 664, 45 N. E. 787, it was held that an action to rescind a contract might be amended into an action to recover damages for the fraud alleged to have been committed, but this seems unsound, as the assertion of the right to rescind without even beginning a suit seems a conclusive election. See infra, Sec. 1469.
22 See supra, Sec.Sec. 678 el seq.
23 Mason v. Ditchbourne, 1 M. & Rob. 460; Wright v. Campbell, 2
F. & F. 393; Ames, Legal Essays, 106.
23a George v. Tate, 102 U. 8. 564, 26 L. Ed. 232; Vandervelden v. Chicago & N. W. Ry. Co., 61 Fed. Rep. 54; Halley v. Younge, 27 Ala. 203; Gage v. Lewis, 68 11I. 604, 613; Huston v. Williams, 3 Blackf. 170, 25 Am. Dec. 84; Burrows v. Alter, 7 Mo. 424; Stryker v. Vanderbilt, 1 Dutch. 482; Dale v. Roosevelt, 9 Cow. 307; Wyche v. Macklin, 2 Rand. 426.
23b Lovell v. Hicks, 2 Y. & C. Ex. 46; Ames, Legal Essays, 106.
23c See Elliott, Contracts, Sec.Sec.2424 et seq. 24 Supra, Sec. 1370. 25 Seesupra, Sec.1373.
26 Barnes v. Century Say. Bank, 149 la. 367, 128 N. W. 541.
27 Pike's Peak Paint Co. v. Masury, 19 Cob. App. 286. And see cases in the following note.
28 Ferguson v. Carrington, 9 B. & C. 59; Kellogg v. Turpie, 93 11I. 265, 34 Am. Rep. 163; Prest v. Farmington, 117 Me. 348, 352, 104 Atl. 521, 523; Del-lone v. Hull, 47 Md. 112; Allen v. Ford, 19 Pick. 217; Jones v. Brown, 167 Pa. St 395,31 Atl. 647. And see Whitlock v. Heard, 3 Rich. L. 88.
29 Blalock v. Phillips, 38 Ga. 216; Wigand v. Sichel, 3 Keyes, 120; Crces-man v. Universal Rubber Co., 127 N. Y. 34, 27 N. E. 400, 13 L. R. A. 91; HeU-bronn v. Henog, 165 N. Y. 98,58 N. E. 759; Jaffray v. Wolf, 4 Okla. 303, 47 Pac. 496.
30 Barrett v. Koella, 5 Bias. 40; Dieti's Assignee v. Sutcliffe, 80 Ky. 650; Crown Cycle Co. v. Brown, 39 Or. 285, 64 Pac. 451. See further, 44 Cent. L. J. 380; and supra, Sec.Sec. 1455, 1458.
31 Selway v. Fogg, 5 M. & W. 83; Klaus v. J. H. Flick Const. Co., 198 111. App. 445; Prest v. Farmington, 117 Me. 348, 104 Atl. 521.
Another remedy is applicable also for a particular kind of fraud. Where a writing owing to the fraud of one of the parties, and mistake of the other fails to express the agreement at which they arrived, reformation will be allowed.32