¶1concurring.
¶2The general rule is that in the absence of some specific provision in the contract fixing the rights of the parties in case of recision of the contract, the vendor, in order to rescind, must restore or tender the purchaser what he has received thereunder, as a condition precedent to his right to rescind, since it is a settled principle in courts of equity that relief will never be extended to a party against his own contract, without exacting from him strict justice to his adversary. 39 Cyc. p. 1378.
¶3This rule, however, is subject' to the qualification that, when the recision results from the vendee’s breach of the contract, the amount to be restored to the purchaser is the consideration received less the damage sustained by the vendor because of the breach, which will include the fair rental value oí the property during the time of the vendee’s possession.
¶4The one case cited in the opinion which is directly in point is Lytle v. Scottish American Mortgage, 122 Ga. 458, 50 S. E. Rep. 402. In that case the Supreme Court of Georgia, speaking through Judge Joseph R. Lamar, in an illuminating opinion on this question, said: “When the vendee sets up any right, he is also bound to recognize those of the opposite party, and is equally bound to do equity before he can secure relief. He is not entitled to a return of his purchase money until he has allowed, as a deduction therefrom, all damages caused by his breach, *285one element of which will be the fair rental value of the property during the time he occupied it, even up to verdict. But when he does this he has done all that the law requires. Damages for the breach, payment of the rent, and a return of the land restore the vendor to his status, so far as the value of the land and the sum in hand will warrant. After being granted such complete equity, he should not be heard to complain if the vendee gets only the balance of the purchase money previously paid on account óf a contract which the vendor has voluntarily elected to rescind and set aside.”
¶5This case was not tried on that theory. I concur in the reversal of the decree but not in the direction to enter a decree against complainants for the full amount received as a condition to the cancellation of the contract. In order that equity may be awarded both parties, complainants should be permitted to show what damages, if any, they suffered as a result of the breach of the contract by defendants, which should include the fair rental value of the property while in the possession of defendants under the contract.