#### Hansen, Respondent, vs. Allen, imp., Appellant.

*February 6*

February *24, 1903.*

*Contracts: Rescission for fraud: Prior offer to restore: Vendor and purchaser: Interest: Amendment of pleading and findings: Discretion.*

1. An action to rescind a contract on the ground of fraud may he maintained although there was no prior offer to restore what plaintiff received thereunder. The failure to make such offer affects, at most, the question of costs, and where it is apparent that it would have been rejected if' made, costs may properly he allowed to the plaintiff.

2. The vendee in a land contract is entitled to have it rescinded for fraud of the vendor in pointing out other land and representing it to be that described in the contract, without proof of actual damage.

*623. Where a land contract is rescinded for fraud of the vendor, the vendee is entitled to interest on his payments from the time they were made.

4. Two or three months after the filing of findings and entry of judgment the court ordered that, on payment of $5 costs, the complaint he amended so as to conform to the proofs and that a certain finding he added which had heen actually found hy the court from the undisputed evidence hut inadvertently omitted from the written findings. *Held,,*not an abuse of discretion.

Appeal from a judgment of the circuit court for St. Croix county: E. W. Helms, Circuit Judge.

*Affirmed.*

This action was commenced March V, 1900, to rescind a land contract entered into by and between the plaintiff and the defendant Allen, August 22, 1899, wherein and whereby *Allen*agreed to sell and convey to the plaintiff the eighty acres of land described, for the agreed price of $640, of which sum $100 was paid down and the other $540 was payable in five instalments as therein mentioned — the first of which was for $100, due February 1, 1900 — on the ground that the plaintiff was induced to enter into such contract by the fraud and false representations of *Allen*and his authorized agent, the defendant Hennen, as to the identity, condition, and situation of the land, and to recover bach what the plaintiff had paid thereon, with interest.

Issue being joined and trial had, the court found, in effect, that at the timé of making the contract, and for a long time prior thereto, *Allen*was a real estate dealer at St. Paul, and owned lands near Cumberland, in Barron county, Wisconsin; that just before making the contract the plaintiff had a conversation with *Allen*at St. Paul relative to the purchase of some of such lands; that *Allen*represented to the plaintiff that the defendant Hennen was his agent at Cumberland, and was authorized to act for him in all matters pertaining to the sale of such lands; that pursuant to such negotiations, and upon the solicitations of Allen, the plaintiff went to Cumber-*63laud and was shown certain lands by Hennen as tbe lands of *Allen*— not described in tbe contract; that tbe plaintiff, being satisfied witb tbe lands so shown him, agreed with Hennen to purchase tbe same at $8 per acre; that at tbe time Hennen so showed said lands to plaintiff be represented them as being lands of a certain description, which description was false; that plaintiff was a stranger in Barron county, and was unacquainted with tbe government descriptions, and relied entirely upon the représentations of Hennen, and was deceived by such representations, all of which was well known to Hen-nen; that relying upon such representations, and being deceived thereby, the plaintiff paid $50 on the purchase price thereof, August 17, 1899, and took a receipt for the same, and did thereafter, on August 22, 1899, pay an additional sum of $50,- and then and there did enter into the land contract mentioned; that so relying upon such representations made to plaintiff by Hennen, and being deceived by the same, and after signing said land contract, the plaintiff made a further payment to the defendant upon said lands of $116.59, being $100 on the purchase price, and $16.59 by way of interest which became due February 1, 1900; that thereafter plaintiff paid taxes due upon said lands to the amount of $7.36; that during all these transactions the plaintiff relied upon the representations of Hennen, and believed that the lands mentioned in the land contract were the identical lands shown to and purchased by plaintiff from Hennen on August 17, 1900; that in February, 1900, and after paying the first instalment mentioned in the contract, the plaintiff first learned that the lands so described in the land contract were not the lands shown to plaintiff by Hennen and which plaintiff actually agreed to purchase from *Allen;*that plaintiff thereupon immediately notified Hennen that he desired to rescind the contract, and demanded back the money paid to *Allen;*that thereafter, on March 6, 1900, plaintiff sent a letter to *Allen*demanding that he repay to plaintiff the amount *64paid under said contract, and offering to relinquish all claim upon said lands to *Allen;*that upon tbe trial of this action plaintiff produced in court and tendered to tbe defendant a quitclaim deed of said lands, duly executed and acknowledged, wbicb tender was refused by tbe defendant *Allen.*

And, as conclusions of law, tbe court found that in pursuance-of an order entered September 25, 1900, the action was discontinued as against Hennen, with costs in bis favor, and that tbe plaintiff was entitled to judgment against *Allen,*annulling tbe land contract, and also to recover from *Allen*$223.95, with interest on $100 from August 22, 1899, and that tbe quitclaim deed mentioned be delivered to tbe defendant *Allen*upon bis demand, and also that plaintiff was entitled to costs in this action against *Allen.*From tbe judgment entered thereon accordingly, tbe defendant *Allen*appeals.

For tbe appellant there was a brief by *Harold Harris*and *T. M.*Thorson, and oral argument by *Mr. Harris.*

For tbe respondent the cause was submitted on a brief signed by *William N. Fuller.*

Cassoday, C. J.

It is claimed that tbe complaint does not state facts sufficient to constitute a cause of action, and that at the close of tbe testimony the court should have granted a nonsuit or dismissed tbe action. Tbe facts found by tbe court are to tbe effect stated. According to such findings, tbe plaintiff was induced by tbe false representations of tbe appellant and bis agent to make tbe contract mentioned, believing that it described other lands, of very much different condition and quality, wbicb bad been shown to him by tbe plaintiff’s authorized agent.

1. Tbe contention is that there was no sufficient offer on tbe part of tbe plaintiff to return to tbe appellant tbe title be had received from tbe appellant before tbe commencement of this action. It appears that in February, 1900, and as *65soon as the plaintiff learned of snob misdescription, be immediately notified sncb authorized agent of the appellant that be desired to rescind the contract, and demanded back the money be bad paid to the appellant; and thereupon and on March 6, 1900, the plaintiff sent a letter to the appellant — personally — at St. Paul, demanding of the appellant the repayment of the money so paid by him, and therein offering to relinquish all claim upon the land to the appellant. True, that letter so sent the day before the commencement of this action was not received by the appellant until the day after the commencement of the action. On the trial the plaintiff produced and tendered to the appellant a quitclaim deed of the land described in the contract, as offered in the complaint, which the latter refused to acbept, and the same was deposited with the clerk of the court for the use of the appellant. The appellant in his answer denied such misrepresentations, and refused to repay the money; and he admitted under oath that he would not have repaid the money, even if a demand had been made upon him personally before the commencement of the action. It is manifest from the conduct and admission of the appellant, stated, that he would have rejected a deed had it been tendered at the time the plaintiff expressed a desire to rescind the contract and demanded back the money he had paid. It is to be observed that this is an action for rescission on the ground of fraud. It has been held that: “It is not necessary to the maintenance of a bill in equity for the rescission of a contract on the ground of fraud that the party complaining should have first restored or offered to restore what he received under the contract.” *Martin v. Martin,*35 Ala. 560; *Perry v. Boyd,*126 Ala. 162, 169, 28 South. 2711, and cases there cited. To the same effect: *Kiefer v. Rogers,*19 Minn. 32. See 9 Am. & Eng. Ency. of Law (2d ed.) 201. These cases are in harmony with the rulings of this court. *Hyland v. Roe,*111 Wis. 361, 370, 87 N. W. 252, and cases there cited; *Lockwood v. Allen,*113 Wis. 474, 89 N. W. 492. *66At most, tbe want of sucb prior- offer could only affect tbe question of costs. Id. Tbis court bas also beld tbat: “Where tbe vendor repudiates tbe alleged sale, and it is apparent from tbe facts and circumstances tbat tbe money would be refused, tender of tbe purchase money before bringing a bill for specific performance would seem to be unnecessary.” *Wright v. Young,*6 Wis. 127. So it bas been beld tbat: “Where tbe vendor in a land contract is able, ready, and willing at tbe proper time to convey tbe land, and offers to do so, but tbe vendee absolutely refuses to receive a deed or pay any part of tbe purchase money as agreed, tbe vendor may maintain an action on tbe contract, without having actually made and tendered a deed.” *McWilliams v. Brookens,*39 Wis. 334. To tbe same effect: *First Nat. Bank v. Kickbusch,*78 Wis. 218, 47 N. W. 267. For tbe reasons stated, there was no error in allowing costs to tbe plaintiff.

2. It is claimed tbat even if tbe plaintiff was induced to make tbe contract by sucb fraud, yet there is a failure on tbe part of tbe plaintiff to show tbat be was actually damaged by reason of sucb fraud. It is enough to say tbat tbe plaintiff was entitled to have tbe particular piece of timbered land with a stream of water upon it which bad been pointed out to him, and for which be actually contracted, instead of a different piece of land situated at some other place.

3. Tbe court having set aside tbe contract for fraud, there was no error in allowing interest to tbe plaintiff on tbe payments made by him from tbe time of sucb payments respectively. *Potter v. Taggart,*59 Wis. 1, 16 N. W. 553, 632; *McKinnon v. Vollmar,*75 Wis. 82, 43 N. W. 800; *J. I. Case Plow Works v. Niles*& *S. Co.*107 Wis. 9, 17, 82 N. W. 568; 1 Sutb. Dam. (2d ed.) § 354.

4. Error is assigned because, some two or three months after tbe findings were filed and tbe judgment was entered, tbe court, on tbe bearing of an order to show cause, ordered tbat tbe complaint be and tbe same was thereby amended so *67as to conform to tbe proofs in tbe particulars therein named; and it was therein ordered that there be added to the written findings the following: “No. 12. That the plaintiff holds unincumbered all the right, title, and interest in and to the said land that he received from the defendant *Allen ”*on the ground that such finding so added “was actually found by the court, from the undisputed evidence received upon the trial, without objection,” but had been “inadvertently omitted” from the “written findings of fact.” The statute expressly authorized the court, in its discretion, to make such amendment “before or after judgment, in furtherance of justice and upon such terms as may be just.” Sees. 2830, 2832, Stats. 1898. The order in question required the plaintiff to pay to the appellant $5 costs. We perceive no abuse of discretion in making such order and amending the complaint and findings accordingly. We find no reversible error in the record.

*By the Court.*— The judgment of the circuit court is affirmed.