Imperial Valley press., 1908-07-11


 point. in view of other conclusions which I have reached, need not be pur- sued.
 Recurring now to the first ground of demurrer, it may be said, the law is we'll settled, that, before a party can rescind contract either for non performance or illegality, he must of fer to return the property received and place the other party in the posi- ton he formerly occupied, as far as practicable. Andrews vs. Hensel 6 Wall, 254-25S; Civil Code of Califor- mia. Sec. 1691)
 This rule is also impliedly recog- nized by the majority of the court and expressly asserted in the dissenting opinion of Judge Ross, in the case of l.. M. Holt vs. The California Develop ment Company, ct al., decided Feb ruary the 10th. 1908, by the Circuit Court of Appeals for this Circuit, but not yet reported, although, in that case. the opinion of the court is to the effect. that under the peculiar delegations of the bill, the complainant had not received any money to its own use or benefit. and therefore had noth- 1 ing to restore. See also 24 Amer. X ! Eng. Ency. of Law 621.
 l The bill herein shows, that com plainants have sold 35,633 shares of the capital stock of the defendant, and defendant, in it's brief, at page 4S, assumes. that the bill alleges the value of the sixty-five thousand shares of unissued stock to be twenty dol lars per share. After careful examin- alton. 1 am unable to find any such allegation in this case, but do find 1t | in case No. 1274, and assume, that counsel through mistake, has con fused the two cases ill this respect. ! The bilk however, does show, that l the water rentals from the holders of l this issued stock for the six months ending July 1st, 1906, were $17,6SO.11. and it is fair inference, that the pro ceeds of the sale of said stock receiv- ed by the complainant aggregate a l large sum of money.
 The bill does not offer to return these proceeds, or any part of them, and in this respect fails to make out a case for rescission.
 It was, doubtless, in view of the diff ficulty just suggested, that complain ants, at page of their brief, speak of this as a foreclosure proceeding, in the following language:
 whenever a party refuses to carry out and perform a contract under which he holds rights and property, an action in equity may be maintained against him to foreclose that con tract and his rights hereunder. An executory contract for the purchase and sale of land is one of the com honest examples of this sort of con- tract which are foreclosed. And this is exactly the kind of contract here before this court and that is exact " WUdI we dI SSChlhS CO uO'
 Acareful examination of the bill shows, that it is in no sense of the term foreclosure suit. It is sim ply a bill, as I have already said, to rescind contracts for non-perform- ance. and was brought pursuant to a notice, declaratory of such purpose, served by complaints on defendant prior to the bringing of the suit, con taining among other things, the fol lowing:
 You are notified: 1, That all back water rentals and assessments for water must be paid on or before the 25th day of August, 1906.
 "2. That your company by the said 25th day of August 1906, must per form all the other covenants and con ditions of the contracts existing be- tween your company and the com panies that I represent as above named, particularly with reference to the issuing of stock of Imperial Water Company No. D. on the order of the California Development Company and of holding all of the unissued stock subject to it's order, as provided for