¶1— The plaintiff sold to defendant a farm in the state of Indiana, at the rate of forty dollars per acre, and, in consideration thereof, the defendant agreed to pay off incumbrances upon the land by him purchased to the amount of $3,000, and for the balance of the purchase money agreed to convey to plaintiff Iowa lands, at the rate of ten dollars per acre.
¶2The plaintiff, in his petition, sets out a copy of the bond given to him by defendant, which sets forth the contract as above stated, and claims that the Iowa lands were not what the defendant represented them to be, and that by means'of the false and fraudulent representations made by defendant at the time the contract was made, that he had been damaged to the amount of $10,000, for the recovery of which this suit is brought.
¶3The defendant denies the fraud, and alleges that he has paid off the incumbrances to the amount of $3,000, on the land purchased of plaintiff, as he had agreed to, and is ready to perform his contract, and that plaintiff is not entitled to recover. „
¶4Upon trial, the court, after having fully and correctly directed the jury as to what constituted fraud, upon the question of damages charged them as follows:
*4“ If the plaintiff is entitled to recover, he is entitled to recover the money value of the consideration received by the defendant, and the money value of the consideration at the time the defendant received it, and interest at six per cent, on the said value to the present time.”
¶5To this instruction the defendant excepted, and the giving thereof is the fii'st error assigned.
¶6It does not appear that plaintiff had offered to rescind the contract by placing the defendant in the same position he was in before the contract was made, which we think he would have to do before he “could recover the money value consideration received by the defendant.” The defendant had partially performed his contract by paying off incumbrances to the amount of $3,000, which was a debt due by plaintiff, and was ready to fulfill his contract by executing a deed for the Iowa lands. Under this instruction the jury could have found for plaintiff the money value of the farm purchased by defendant, without an offer upon the part of plaintiff to rescind or to pay back the money advanced for him by defendant.
¶7The claim of plaintiff is for damages sustained by reason of the false representations of defendant as to the quality of the Iowa lands. The rule of damages, as given by the District Court, would more aptly apply, had the plaintiff placed himself in a position to rescind the whole contract. Having failed to do this, the true measure of damages, under the pleadings, would be the difference between the land purchased by plaintiff at the date of the contract, and the' amount the land would have been worth at that time, had it been such as it was represented to be by the defendant. Hahn v. Cummings, 3 Iowa, 583; Likes v. Baer, 8 Id. 369.
¶8The court also refused to instruct the jury that the defendant was not liable unless he knew the representations he made were false. Under the rule as laid down by this *5court, in the case of Holmes v. Clark, 10 Iowa, 438, this instruction should have been given.
¶9The court also erred in refusing to dissolve the attachment, upon the motion of defendant. The claim of plaintiff was not founded upon a written contract. The damages being unliquidated, an attachment should not have been issued until the requirements of section 1851 of the Code had been complied with.
¶10Judgment reversed.