out reference to any other conditions than those specified in the contract. Again, some kinds of grants are revocable at will, if no special injury will result to the other party, such as licenses, some forms of settlements and trusts, and some contracts of employment, such as those with brokers and other agents. But aside from these instances, it is a general rule that a contract properly entered into by competent parties and founded upon a consideration, and which one of the parties is able and willing to perform, cannot be rescinded by the other, unless he is able to show the existence of some well-recognized title to equitable relief, such as fraud, mistake, or duress.85 The homely proverb teaches that "it takes two to make a bargain." This is both good sense and good law. And the converse is equally good law, that "it takes two to undo a bargain once properly made," unless, as we have said, it was induced by fraud or is otherwise open to impeachment in a court of equity. Thus, a deed, a contract, or any other kind of an obligation will not be set aside or rescinded merely because the grantor or contractor has changed his mind about it, or because it was his own inexcusable folly and negligence which led him into it,87 or because (no concealment or misrepresentations having been practised upon him) he finds it will be very much more difficult and expensive to carry out his contract than he had supposed.88 And so, although

86

85 Mendell v. Willyoung, 42 Misc. Rep. 210, 85 N. Y. Supp. 647; Starling v. State, 5 Ga. App. 171, 62 S. E. 993; Rodman v. Robinson, 134 N. C. 503, 47 S. E. 19, 65 L. R. A. 682, 101 Am. St. Rep. 877; Bevins v. J. A. Coates & Sons, 29 Ky. Law Rep. 978, 96 S. W. 585; Commercial Register Co. v. Drew, 168 Ill. App. 347; Ziehme v. McInerney, 167 Ill. App. 577; Harlan v. Logansport Natural Gas Co., 133 Ind. 323, 32 N. E. 930; Tison v. Labeaume, 14 Mo. 198; Bellows v. Crane Lumber Co., 126 Mich. 476, 85 N. W. 1103; Wortman v. Montana Cent. Ry. Co., 22 Mont. 266, 56 Pac. 316; Bowman v. Ayers, 2 Idaho (Hasb.) 465, 21 Pac. 405; National City Bank v. Wagner, 216 Fed. 473, 132 C. C. A. 533; Pardoe v. Jones, 161 Iowa, 426, 143 N. W. 405; Listman Mill Co. v Dufresne, 111 Me. 104, 88 Atl. 354.

86 Bretthauer v. Foley, 15 Cal. App. 19, 113 Pac. 356. And see Clark v. Stetson, 113 Me. 276, 93 Atl. 741.

87 Hardy v. Brier, 91 Ind. 91; Moore v. Reed, 37 N. C. 580.

88 Torrey v. Balen Agricultural & Mining Co., 2 City Ct. R. (N. Y.) 387.

a mining lease, granted for a money bonus as a consideration, does not bind the lessee to do any mining or to pay money in lieu thereof, the lessor cannot annul or revoke it merely on the ground of a want of mutuality of obligation.89 And in general, when courts are called upon to set aside contracts, there must be some substantial reasons shown; and a court of equity, particularly, will not act when it is kept in the dark as to the reasons or purposes of a transaction in reference to which relief is sought." To illustrate these principles, where two parties have entered into a written contract for the purchase and sale of goods, neither a countermand of the order for their shipment nor a notice by the purchaser to the seller that he will not accept them will be effectual to cause a rescission of the contract, but to that end the assent of the seller is necessary.91 So, where one conveyed land to his two sons in consideration of their agreement to support him and to pay a certain sum to a designated charity and a certain other sum to his other children and to mortgage the land as security therefor, it was held that the contract was not revocable at the mere will of the grantor, as a testamentary disposition of the property would have been.92 And it follows from what has been said above that, when an agreement has been properly executed and delivered, a party executing it cannot afterwards discharge his liability upon it, by simply erasing his signature, without the consent of the other parties. And on the same principle, one of a number of persons accepting a written proposition cannot, by striking out his name without the consent of the others, relieve himself from liability upon such contract or acceptance.94

93

89 Pyle v. Henderson, 65 W. Va. 39, 63 S. E. 762. 90 Scanlan v Gillan, 5 Cal. 182.

91 Oklahoma Vinegar Co. v. Carter, 116 Ga. 140, 42 S. E. 378, 59 L. R. A. 122, 94 Am. St. Rep. 112; Morgan v. Nashville Grain Co., 12 Ga. App. 574, 77 S. E. 913.

92 Rutland & B. R. Co. v. Powers' Adm'r, 25 Vt. 15.

93 Natchez v. Minor, 9 Smedes & M. (Miss.) 544, 48 Am. Dec. 727

94 Burton v. Shotwell, 13 Bush (Ky.) 271; Merriman v. Norman, 9 Heisk. (Tenn.) 269.

§ 15. Statutory Grounds for Rescission.-In several of the states where the body of substantive law has been codified, elaborate and detailed provision is made for the rescission of obligations, the causes therefor being prescribed and carefully defined, and the process and the results to the parties being also regulated by law. To a large extent, these code provisions merely affirm the common law of the subject. But in some important particulars they have advanced beyond the common law, especially in the way of granting a right of rescission for certain causes (for example, promissory representations), as to which the courts have differed so long and so widely that the common law on the subject cannot even now be said to be definitely settled. It is to be observed that, in these states, the provisions of the code are exclusive, so that a party to a contract cannot rescind it except upon the occurrence of some one or more of the causes specified in the code, whatever might have been his rights at common law.95

§ 16. Same; California, Montana, Oklahoma, North Dakota, South Dakota.-In all these states, the provisions of the codes on the subject of rescission are either identical or very closely similar, the code of California having served as a model for the legislation, on this subject, of the other states named. Dealing first with the principle that a contract is voidable unless founded on the actual, free, and mutual consent of the parties, they provide that “an apparent consent is not real or free when obtained through duress, menace, fraud, undue influence, or mistake," and that "consent is deemed to have been obtained through one of the causes mentioned in the last section only when it would not have been given had such cause not existed." The principal terms above used are then defined and described as follows: "Duress consists in (1) unlawful confinement of the person of the party, or of the husband or wife of such party, or of an ancestor, descendant, or adopted child of such party, husband, or wife; (2) unlawful detention of the property of any such person; or (3) con

95 Swanston v. Clark, 153 Cal. 300, 95 Pac. 1117; Dowagiac Mfg. Co. v. Higinbotham, 15 S. D. 547, 91 N. W. 330.

finement of such person, lawful in form, but fraudulently obtained, or fraudulently made unjustly harassing or oppressive." "Menace consists in a threat (1) of such duress as is specified in subdivisions one and three of the last section; (2) of unlawful and violent injury to the person or property of any such person as is specified in the last section; or (3) of injury to the character of any such person." "Actual fraud consists of any of the following acts, committed by a party to a contract, or with his connivance, with intent to deceive another party thereto or to induce him to enter into the contract: (1) the suggestion as a fact of that which is not true, by one who does not believe it to be true; (2) the positive assertion in a manner not warranted by the information of the party making it, of that which is not true, though he believes it to be true; (3) the suppression of that which is true by one having knowledge or belief of the fact; (4) a promise made without any intention of performing it; or (5) any other act fitted to deceive." "Constructive fraud consists (1) in any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him, or (2) in any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud." "Undue influence consists (1) in the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him; (2) in taking an unfair advantage of another's weakness of mind; or (3) in taking a grossly oppressive and unfair advantage of another's necessities or distress." "Mistake of fact is a mistake, not caused by the neglect of a legal duty on the part of the person making the mistake, and consisting in (1) an unconscious ignorance or forgetfulness of a fact, past or present, material to the contract; or (2) belief in the present existence of a thing material to the contract, which does not exist, or in the past existence of such a thing, which has not existed. Mistake of law constitutes a mistake within the meaning of this article [jus

tifying the rescission of a contract] only when it arises from (1) a misapprehension of the law by all parties, all supposing that they knew and understood it, and all making substantially the same mistake as to the law; or (2) a misapprehension of the law by one party, of which the others are aware at the time of contracting, but which they do not rectify. Mistake of foreign laws is a mistake of fact."

996

In connection with these provisions, as being in pari materia with them, should be read the provision that, for the purposes of a statutory action of deceit, a deceit consists in "(1) the suggestion as a fact of that which is not true by one who does not believe, it to be true; (2) the assertion as a fact of that which is not true, by one who has no reasonable ground for believing it to be true; (3) the suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or (4) a promise made without any intention of performing it." "7

Applying these definitions and principles to the rescission of contracts, and dealing first with the right of a party to rescind without invoking the aid of a court, the codes provide that "a party to a contract may rescind the same in the following cases only: (1) if the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party; (2) if, through the fault of the party as to whom he rescinds, the consideration for his obligation fails, in whole or in part; (3) if such consideration becomes entirely void for any cause; (4) if such consideration, before it is rendered to him, fails in a material respect from

96 Civ. Code Cal., §§ 1567-1579; Rev. Civ. Code Mont., §§ 49734985; Rev. Civ. Code N. Dak., §§ 5288-5300; Rev. Civ. Code S. Dak., §§ 1196-1208; Rev. Laws Okl., 1910, §§ 898-910.

97 Civ. Code Cal., § 1710; Rev. Civ. Code Mont., § 5073; Rev. Civ. Code N. Dak., § 5388; Rev. Civ. Code S. Dak., § 1293; Rev. Laws Okl., 1910, § 994.