McCall

By this proceeding we are required to redeclare the distinction between an action to secure the beneficial results which arise from a unilateral rescission of a contract already accomplished (rescission in pais) and an action in equity to compel a rescission and to secure an award by decree of the benefits resulting therefrom. We are also required to declare whether or not, under the law of attachment (sec. 537 of the Code of Civ. Proe.), a suit for return of the consideration paid upon a contract, after a rescission in pais for fraud, is an action upon a contract, express or implied, for the direct payment of money.

In the case of Harry E. Griffin et ux., Plaintiffs, v. Thaddeus D. McCall et al., Defendants, No. 13573, the Superior Court of the State of California, in and for the County of Imperial,. on February 24, 1933, gave its decree in favor of plaintiffs for a restoration to them by defendants of the consideration paid for the purchase of a tract of real property, a grapefruit grove of 6.12 acres, to wit: the sum of $6,381.40, with interest and costs. This followed a confirmation by said decree of a rescission of the contract, accomplished by plaintiffs on February 1,…

I dissent. A copy of the complaint in the action of Griffin v. McCall is attached to the petition herein. In the first cause of action, in twenty-six paragraphs, the plaintiffs set forth the facts on which they rely for relief. They allege their contract with certain of the defendants for the purchase and sale of real property, under which contract written documents were executed and exchanged, and under certain of which the plaintiffs acquired the title to the real property involved. They allege at length the fraudulent representations under which they were induced to enter into the contract and acquire the property, with appropriate averments of falsity and reliance. They allege rescission of the contract, on notice, and an offer to restore, upon the discovery of the alleged fraud. They pray that their rescission be confirmed; that the court order a cancellation of the written instruments and compel the defendants' to accept a reconveyance of the title to the property received by the plaintiffs in the transaction, and that money paid to the defendants be returned to the plaintiffs.

There can be no doubt that the pending action is a suit in equity, as distinguished from an…

By this proceeding we are required to redeclare the distinction between an action to secure the beneficial results which arise from a unilateral rescission of a contract already accomplished (rescission in pais) and an action in equity to compel a rescission and to secure an award by decree of the benefits resulting therefrom. We are also required to declare whether or not, under the law of attachment (sec. 537 of the Code of Civ. Proc.), a suit for return of the consideration paid upon a contract, after a rescission in pais for fraud, is an action upon a contract, express or implied, for the direct payment of money.

In the case of Harry E. Griffin et ux., Plaintiffs, v. Thaddeus D. McCall et al., Defendants, No. 13573, the Superior Court of the State of California, in and for the County of Imperial, on February 24, 1933, gave its decree in favor of plaintiffs for a restoration to them by defendants of the consideration paid for the purchase of a tract of real property, a grapefruit grove of 6.12 acres, to wit: the sum of $6,381.40, with interest and costs. This followed a confirmation by said decree of a rescission of the contract, accomplished by plaintiffs on…