rehearing">

On Motion for Rehearing.

WATSON, J. We placed the decision on two legal propositions, which appellee urged and which appellants did not question. They are: (1) That “a vendor, himself in default, has no right to rescind;” and (2) that “if a vendor rescinds wrongfully the vendee may accept the rescission and sue to recover the consideration already paid.”

Appellants moving for a rehearing, say that the foregoing are correct as abstract propositions, but not applicable to this case because of another proposition which we must have overlooked; viz., that neither vendor nor vendee, in default, may have rescission. They urge that appellee, the vendee, being-in default for 6 months interest, could not rescind for the same reason that appellants, in default, could not do so. We may admit, as an abstract proposition, that a vendee in default is in no better position to demand rescission than a vendor in default. Yet we cannot sustain the contention as applied to this case.

It was the view of the trial court, undoubtedly, that appellee was not in fact in default. Our approval of this theory is made fairly clear by the opinion. The reason is that, in September preceding the interest maturity in December, appellants misapplied and converted of appellee’s money several times the amount of the interest. It would seem absurd in a court of equity, where the doctrine of set-off had its origin, to hold that appellee, under such circumstances, was under a duty to pay the interest or in default for failure to do so. -

Attention now being directed to the point, we notice some confusion of terms in our original statement. Appellants, strictly speaking, did not claim the right to rescind. They claimed the more drastic right to declare a forfeiture. Appellee was not in the position of claiming the right to rescind because of appellants’ default. In such a case it might have been necessary for him to tender the interest. He was in the position of taking advantage of appellants’ attempt to forfeit, as an abandonment of the contract. Acceptance of such an abandonment amounts to a mutual rescission. So the cited decisions hold. In those cases the vendee was in default as to payments, but the vendor had waived the default by conduct, or, because of default of his own, was not in position to take advantage of it. If, under such circumstances, the vendor attempts forfeiture, the vendee, without offer to pay what is due under the contract, may claim a mutual rescission and have restitution. So considering, it Avould he illogical to require the vendee to tender performance before demanding restitution. The purpose of tender is to put the opposite party in the position of having violated the contract. He is already in that position. Of course if such a tender Averc rejected, it would be a harmless form. But it might be accepted. That Avould lead to complications readily to be perceived. The vendee’s default in payment is no default, within the principle invoked, if, for some reason, the vendor is not in position to take advantage of it. Such is the situation here.

The motion will be overruled.

PARKER and BICKLEY, JJ., concur.

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