the land, with judgment and tax certificates in accordance with his covenant so to do.

Order affirmed.1

*

'In Campbell Mfg. Co. v. Marsh, 20 Colo. 22 (1894), plaintiff bought of defendant a printing press and folder for $3,000, and made a cash payment of $500. The press was delivered, set up, and used, but defendant failed to deliver the folder. Plaintiff sued for the return of the $500. The court said: "It is urged that as the press had been put in use by appellee, the appellant could not be placed in statu quo and hence the former could not rescind. * * In this case, however, it was in contemplation of the parties that the press should be used pending the delivery of the folder. The evidence shows that it was in fact used only to a very limited extent; that appellees had little or no benefit from such use and that the press was returned in as good condition as when received. It is true that the witnesses testified that it would not sell so well as an unused press, but the rule requiring the seller to be placed in statu quo has never, we think, been extended so far as to entitle the party in fault to be saved from all loss."

In Timmerman v. Stanley, 123 Ga. 850 (1905), plaintiff was wrongfully expelled from a business college in which he had paid for two scholarships, and sought to receive back the amount paid. The court said: "Where a person agrees to teach another a certain thing, to qualify him for a certain position, if he gives the student some instruction and then refuses to complete his contract, there would be no possible way by which such instruction as he had given could be returned or tendered back to him; nor is the other party required to estimate value for what has been done and tender such amount. He can not hold on to the amount paid, refuse to proceed with the contract, and defend against an action to recover the price paid on the ground that the plaintiff had not tendered back to him his instruction and could not restore him to the status quo." See note on this case, 6 Col. L. Rev. 53.

An extreme case allowing recovery without deduction for benefits received is Ankeny v. Clark, 148 U. S. 345 (1893), where defendant contracted to sell land to plaintiff in consideration of 12,000 bushels of wheat. Plaintiff delivered the wheat but defendant failed to make title. Plaintiff sued to recover the value of the wheat and was allowed to do so, without deducting the value of the use of the land which he had enjoyed for some years while in possession under the contract. The technical reason given for not requiring the deduction was that no action lies for use and occupation except where there is the conventional relation of landlord and tenant (see upon this point, Smith v. Stewart, reported herein, p. 618); accord, Castle v. Armstead, 168 N. Y. App. Div. 466 (1915) 29 Har. L. Rev. 340. Cf. Todd v. Leach, 100 Ga. 227 (1896), where plaintiff built a house upon the land of defendant upon agreement by defendant that plaintiff was to have "the use and occupation of the same for the balance of his life, rent free." Plaintiff built the house and went into possession, but defendant later wrongfully evicted him. Plaintiff then sued for his expense and the value of labor in building the house, and it was held that he must "account for the value of the use" while he was in possession.

VAN WERDEN v. EQUITABLE LIFE ASSURANCE SOC.

99 IOWA 621.-1896.

From the petition it appears that September 19, 1891, the plaintiff paid to the defendant society the sum of $500.40, the same being three annual premiums on a $3,000 bond or policy of insurance on his life, which policy was afterward issued to plaintiff; that on the 19th day of September, 1892, the defendant sent to plaintiff a receipt for $166.80, being the annual premium due on that date; that on September 19, 1893, the defendant demanded of plaintiff the sum of $166.80, being the third annual premium on said policy, which had already been paid, and which plaintiff refused to again pay; and that because of such refusal defendant notified plaintiff that the policy was not in force, and became suspended and avoided because of the nonpayment of the third annual premium. The petition asks to recover the amount originally paid-$500.40— with interest. At the close of the entire evidence plaintiff moved for a verdict in his favor, which the court directed, and from a judgment thereon the defendant appealed. Affirmed.

GRANGER, J.- * * * * IV. It is urged by appellant that the plaintiff having had the insurance two years, there could be no recovery back of the entire premium paid. The court held that plaintiff, if entitled to recover, was entitled to the entire amount paid, with interest. There is a rule that, where the contract has once taken effect, there is ordinarily no law to sustain a recovery of premiums paid. Cooke, Life Ins., § 104; May, Ins., § 567; Bliss, Ins., § 423. In support of the rule are cited Standley v. Insurance Co., 95 Ind. 254; Insurance Co. v. Houser, 89 Ind. 258, and the same case in III Ind. 266, 12 N. E. 479.1 It is observed that the rule as stated is the ordinary one, and the cases supporting the text are generally, if not en

'In Skudera v. Metropolitan Life Ins. Co., 17 Misc. 367 (1896), (N. Y. Supreme Ct., Appellate Term) recovery back of the premiums was denied, the court saying: "Granting that upon the defendant's breach the plaintiff could treat the contract, with regard to each of the policies, as determined, it does not follow that the defendant was bound ex aequo et bono to restore the premiums received by it, for which, in part, at least, the plaintiff had had value in the risk assumed by the defendant. Plainly, the plaintiff could not predicate a rescission of the contract of the defendant's breach without restitution by her of what she had received under the contract, and a contract of life insurance being essentially indivisible in point of performance by either of the parties thereto, Cohen v. N. Y. Mut. Life Ins. Co., 50 N. Y. 610, such restitution was in the nature of things impossible. Wharton on Contracts, § 748; Clark on Contracts, 774; Hunt v. Silk, 5 East 783. In a case such as the one at bar, if the insured is unwilling to await the maturity of the policy and then to test its continued vitality, only two remedies are available, the insured may either sue at law for damages for the insurer's breach of contract, or prosecute an action in equity to have the policy adjudged to be in force and the insurer to accept the premium refused. Sutherland on the Meas. of Dam., §838; Speer v. Phoenix Mut. Life Ins. Co., 36 Hun 323; Day v. Conn. Gen. Life Ins. Co., 45 Conn. 480; 29 Am. Rep. 693; Hayner v. Am. Pop. Life Ins. Co., 69 N. Y. 435; Cohen v. N. Y. Mut. Life Ins. Co., supra."

tirely, based on facts as to which there might not have been room for doubt; and the text writers from whom we quote make such distinctions as to render doubtful the application of the rule to the facts of this case. From some language in the latter case, cited from Indiana, it would seem as if the rule there stated might be doubted, as, because of its former application to the case, it is held to be the law of it. But, however that may be, we think the rule for this case quite definitely settled. In Insurance Co. v. McAden, 109 Pa. 399, i Atl. 256, the company wrongfully revoked the policy that had run for ten years. The action was to recover the premiums paid, and it was held that there could be a recovery. In that case there had been no advance premiums paid, so that the recovery was sought only for premiums covering the time when the policy had been in force. In the opinion it is said: "In the case at bar the rights of the parties under the contract of insurance had attached, but the plaintiff had never received any actual benefit from it. They may, in some sense, perhaps, be said to have enjoyed the protection which the policy afforded in the event of the husband's death; but, as that event did not occur, the policy had as yet been of no appreciable actual advantage to the plaintiff, and no real disadvantage to the defendant. The parties, for anything that appears, upon the plaintiff's recovery are placed precisely in the same situation that they were before the contract was made; for, although the company had carried the risk, and the plaintiff, Mary A. McAden, at all times during the continuance of the contract, upon the happening of the event provided against was entitled to the indemnity it secured, yet the company has paid nothing and the plaintiffs have received nothing. As in the case of any other contract, the parties were entitled, during its continuance, according to its terms. The policy, when made, was admittedly valid; the premiums which were paid were voluntarily paid upon the policy; the risk had been running for ten years; the obligations of the contract were long since in force on both sides; and it is clear that plaintiffs could not, on their own mere motion, rescind it so as to recover back the premiums paid. But if, after receiving the several premiums, the company, without right, refuses to receive further premiums as they mature, deny their obligation, and declare the contract at an end, the plaintiff, we think, may take the defendants at their word, treat the contract as rescinded, and recover back the premiums paid as so much money had and received for their use." Rescission or avoidance, properly so called, annihilates the contract, and puts the parties in the same position as if it had never existed. And notice that a party will not perform his contract has the same effect as a breach. The latter proposition is supported in Ballou v. Billings, 136 Mass. 307. For the purposes of the question we are considering, the case at bar does not differ, in any essential fact, from the Pennsylvania case. In McKee v. Insurance Co., 28 Mo. 383, it is said: "If the defendant [the company] wrongfully determined the contract by

refusing to receive a premium when it was due, then the plaintiff had a right to treat the policy as at an end, and recover back all the money she had paid under it." In Insurance Co. v. Garmany, 74 Ga. 51, it is said that, if the assured makes defaults in his payments, he forfeits all his payments, with the interest that would have accrued thereon from the time of payment. It then holds that when the company violates the conditions of its contract it is liable to return to the assured as much as he (the assured) would lose because of the breach of the contract. The case holds that, where the company violates its policy, the assured may recover the premiums paid, with interest. The case cites Insurance Co. v. McAden and McKee v. Insurance Co., supra. The rule of those cases has a clear support in Meade v. Insurance Co., 51 How. Prac. 1. That such a rule has ample support on authority is hardly to be doubted. The case at bar, in its facts, is clearly within the rule.

It is urged that the act of the company in avoiding the policy could not affect the right of plaintiff thereon if the facts did not justify the avoidance. That may be true as a legal proposition, but it is held in Insurance Co. v. McAden, supra, that the assured in such a case may take the insurance company at its word, and treat the contract as rescinded. The authorities sustain the rule that in such a case the assured may elect whether to enforce the contract or treat it as rescinded, and recover for the breach. The judgment of the District Court is affirmed.1

In Lovell v. St. Louis Mut. Life Ins. Co., 111 U. S. 264 (1884), an equity suit, defendant terminated its business and transferred its assets and policies to another company, and thus put it out of its power to perform. Complainant sued to recover the premiums he had paid, with interest. The court said: "The question remains as to what is justly due the complainant, by reason of the contract being terminated by the act of the company. He demands a return of all the premiums paid by him, with interest, less the amount of his premium note; and that said note shall be delivered up to be cancelled. We do not think he is entitled to a return of the full amount of his premiums paid. He has the benefit of insurance upon his life for five years, and the value of that insurance should be deducted from the aggregate amount of his payments." Accord, where infant plaintiff disaffirmed his life insurance contract and sought return of premiums he had paid. Johnson v. Ins. Co., 56 Minn. 365 (1894); and see also State ex rel. Schaefer v. Ins. Co., 104 Minn. 447 (1908). For an extended discussion as to restitution by plaintiff, seeking through recission to recover back insurance premiums, see prevailing and dissenting opinions in Moore v. Mutual Reserve Fund Assoc., 121 N. Y. App. Div. 335 (1907), a case of recission for fraud. Upon restoration of consideration in recission for fraud see also, Schank v. Schuchman, post p. 606.

BREWSTER v. WOOSTER.

131 N. Y. 473-1892.

PER CURIAM.-We deem it unnecessary to refer in detail to the complicated transactions disclosed by the evidence. The plaintiff in his complaint sought to recover of the defendant the value of certain real estate and chattels transferred by him to the defendant in part performance of a contract for the purchase by the plaintiff and two other persons, from the defendant, of a certain stock of goods and certain machinery owned by the latter, valued in the contract at $44,000. The judge on the trial dismissed the complaint on the ground that the action was based on a rescission of the contract by the plaintiff and that it could not be maintained for the reason that the plaintiff had not restored to the defendant what he had received under the contract, and also that there was no allegation or proof of demand before bringing the action. * * * *

The possession of the stock and machinery embraced in the contract of sale was transferred by the defendant to the purchasers, who sold a portion of the goods, receiving therefor about $900. The defendant, however, retained the title to the machinery as security for the full performance of the contract by the purchasers. The defendant, after the payments above mentioned had been made, claiming that the purchasers had not performed their contract, took possession of and sold to third persons all the stock and machinery embraced in the original contract, except the portion of the stock sold by the purchasers as above stated. The seizure and sale was made without the consent of the purchasers and while the contract was in force, since, although it was after the time originally fixed in the contract for performance by the purchasers, it was during a period over which the time had been extended by the agreement of the defendants. * * * *

What the plaintiff has done is to bring his action for the consideration paid by him, based upon a rescission of the contract by the defendant. He elects to accept the situation in which the defendant has placed himself and treats the contract as if the abandonment and rescission by the latter was binding upon all parties. To such a situation the rule that a party seeking rescission must return what he has received under it, is inapplicable. The defendant has retaken and sold to other parties the whole subject of the contract of sale, except the small part of the goods disposed of by the purchasers, and these were sold with the authority and consent of the defendant. The purchasers cannot return this part in specie and cannot restore the defendant to the precise situation in which he was when the contract was made. They committed no fault in selling the part of the goods sold by them, as this was in accordance with the understanding and the contract between the parties. The money received can be applied as so much of the consideration returned to the purchasers, and the recovery limited to the excess.