In a suit in equity for rescission a plaintiff who has received consideration commonly offers in his bill to restore the consideration, and whether such an offer is made or not the decree in such a suit will provide, not simply for the return by the defendant of what he has wrongfully acquired, but for the restoration of the consideration by the plaintiff.51 The same principles apply where rescission is exercised without the aid of equity. The injured party must make an offer to restore what he has received on condition of receiving in return what he was defrauded into parting with,52 and if the offer is rejected must hold as bailee what he has received and refrain from exercising acts of ownership.53 The place of return is the place of the original delivery.54 Accordingly, if the defrauded party is unable to restore what he has received, rescission is impossible.55
50 See supra, Sec. 1464.
51 See In re American Knit Goods Mfg. Co., 173 Fed. 480, 97 C. C. A. 486; Thomas v. Beals, 154 Mass. 51, 27 N. E. 1004; Parker v. Simpson, 180 Mass. 334, 343, 62 N. E. 401; Mo-Naught v. Equitable Life Ass. Soc, 136 N. Y. App. Div. 774, 121 N. Y. S. 447.
52 Clarke v. Dickson, E. B. & E. 148; Grymes v. Sanders, 93 U. S. 55,23 L. Ed. 798; Samples v. Guyer, 120 Ala. 611, 24 So. 942; Herman v. Haffeneg-ger, 54 Cal. 161; Adam, Meldrum Co. v. Stewart, 157 Ind. 678,61 N. E. 1002, 87 Am. St. Rep. 240; Doylestown Agr. Co. v. Brackett Ac. Co., 109 Me 301, 84 Atl. 146; Tisdale v. Buckmore, 33 Me. 461; Thomas v. Beals, 154 Mass. 51, 54, 27 N. E. 1004; Owen v. Button, 210 Mass. 219, 96 N. E. 333; Putney v. Schmidt, 16 N. Mex. 400,120 Pac. 720;
Rumsey v. Shaw, 212 Pa. St. 576, 578; Brady v. Oliver, 125 Tenn. 595, 147 S. W. 1135, 41 L. R. A. (N. S.) 60; Wright v. Bristol Patent Leather Co., 257 Pa. 552, 101 Atl. 844; Friend Bros. Co. v. Hulbert, 98 Wis. 183, 73 N. W. 784; Duluth Music Co. v. Clancey, 139 Wis. 189, 120 N. W. 854.
53 Davis v. Gifford, 182 N. Y. App. D. 99, 169 N. Y. S. 492. It seems, however, that after the lapse of a reasonable time a defrauded buyer who has paid the price must be allowed to enforce his lien on the goods by appropriate methods, without thereby losing his right of action for restitution of the price.
54 Milliken v. Skillings, 89 Me. 180, 36 Atl. 77. See also supra, Sec.1463. Cf. Rood v. Priestly, 58 Wis. 255,16 N. W. 546.
55 See cases cited in preceding notes.