
    Chauncey Taft vs. Eden Wildman.
    It is not error for the Court to omit to instruct the jury on a point of law arising in the case, unless instructions are asked by counsel.
    To rescind the contract and recover back the consideration, a thing , received'in payment of no value need not be returned to the defendant.
    If A sell land to B, to receive payment in cash and certificates of discharge from the army, assigned to A, he may sue for the original consideration quo ad hoc those certificates.
    This case is brought here by a Writ of Error to the Supreme Court for the County of Trumbull.
    From the record it appears that the defendant in error, Wildman, brought an action of assumpsit against Taft, the plaintiff in error, and declared for land sold , and conveyed. The declaration contains one common and two special counts, and to which the plaintiff in error plead the general issue of non-assumpsit. The-case was tried in the Supreme Court for Trumbull county at the August term, 1844, by a jury, and a verdict and judgment rendered for the defendant in error. This judgment is sought to be reversed by the prosecution of this writ of error.
    From a bill of exceptions which was taken during the trial, it appears that the defendant in error gave evidence to prove that, at the time stated in the declaration, he conveyed' the land described therein, to the plaintiff in error. That the price agreed upon between the parties was eight hundred dollarsj, and he received, in payment therefor, four hundred dollars, and two certificates of honorable discharge from the army of the 
      
      United States, at the close of the late war with Great Britain, given to soldiers therein, which were estimated by the parties at $200 each; and which certificates were, at the time of the trade, assigned to the defendant in, error. The defendant in error gave evidence tending to prove that, at the time said certificates were assigned to him, the plaintiff in error had warranted them. The defendant also gave evidence as to the value of the land sold, and likewise evidence tending to prove that both the parties supposed the certificates of honorable discharge would entitle the holder to certain quantities of land.
    In Bank.
    
      Dec. Term, 1846
    
    The plaintiff in error then gave evidence tending to prove that at the time said certificates were taken by the defendant in error, it was agreed between the parties the defendant in error should take them at his own risk. He also gave evidence as to the value of the land purchased by him. There was no proof of fraud in the transaction, nor that the defendant in error had ever offered to rescind the contract, except by demanding payment of the plaintiff in error, and to which he replied he would see the defendant in error the next day.
    The Court then charged the jury that if these certificates were supposed by the parties at the time they were assigned, to convey lands or to transfer a right to obtain lands, that the defendant in error was entitled to recover, inasmuch as the assignment of the certificates was made void by the laws of the United States, and vested no interest in him ; and the rule of damages in that event would be $400, the amount at which the certificates were estimated by the parties, with the interest thereon; but if the certificates were received by the defendant in error under an agreement that he should take them at his own risk, whether they were of value or not, he was not entitled to recover. To this charge of the Court the plaintiff in error excepted, and has assigned the same for error, and by reason thereof now seeks to recover the judgment.
    
      
      Tod, Hoffman &f Hutchins, and Wade 8f Ranney, for Plaintiff in error.
    First: All the parts of the contract between these parties go to make up an entire contract; and, in making it, each party relied upon, and was influenced by each and every part of it. And we can well imagine that one great inducement with the plaintiff in purchasing the land, was, that he could pay, in part, with his certificates. But for this, he would not have purchased the land at so high a nominal price, if, indeed, he would have purchased at all. Being a contract of this description, the defendant cannot recover without first having offered to rescind it, return the certificate, and thus place the parties in statu quo. Coolidge v. Bingham, 1 Met. Rep. 547; 2 Kent’s Com. (3d ed.) 479, 480; Kimball v. Cunningham, 4 Mass. Rep. 502; Conner v. Henderson, 15 Ibid. 322; Perly v. Batch, 23 Pick. Rep. 283, 6; Hunt v. Silk, 5 East Rep. 449; Alexander v. Owen, 1 Term Rep. 225.
    Second: But, if it is permitted to the defendant, at his own option, to rescind the contract or not, as he may please, either in whole or in part, surely the plaintiff should be allowed the poor privilege of proving the value of the land, and establishing a correct rule of damages. If the land was worth $800, the plaintiff should pay $400, with the interest; but if the sum named, $800, was a mere nominal sum, he should not be estopped from proving what it was actually worth, otherwise gross and manifest injustice will be done him. Spencer v. Tilden, 5 Cowen’s Rep. 144; Sherman v. Comstock, 21 Wend. Rep. 457 ; Gleason v. Finney, 5 Cowen’s Rep. 152.
    Third: The certificates having been assigned in good faith, and proving worthless, the loss should, be borne by Wildman, else there is no mutuality in the agreement. Suppose the certificates had proved to have, been worth more than $400, and neither knew but they were actually worth more, could Taft have sued Wildman for the excess ? Certainly not; and why ? Because he had agreed Wildman should have them, no matter what their value. Shall not Wildman, then, be compelled to keep them, regardless of their value ? It seems to us, that in no other way can exact justice be done between the parties. Bayard v. Shank, 1 Watt & Serg. Rep. 92; Ellis v. Weld, 6 Mass. Rep. 321; Alexander v. Owen, 1 Term Rep. 225 Whitbeck v. Wanness, 11 Johns. Rep. 409; Bread v. Good, 15 Ibid. 241; 17 Mass. Rep. 33; Story on Con. 68; Z7„ &. Bank v. Bank of Georgia, 10 Wheat. Rep. 333.'
    
      S. W. Harris and I. J). Taylor, for Defendant in error.
    First: The certificates of ‘‘honorable discharge” to the two soldiers were valueless, unless as evidence for the soldiers themselves, to procure lands from the government. They were called “ soldiers’ rights ” by the parties, who, in their ignorance of their value, supposed they would authorize the holders to draw military bounty lands from the General Government.— Any assignment of a soldier’s right to military bounty land, was, by act of Congress, rendered void both at law and in equity.
    The attempt of Taft to assign these “ soldiers’ rights ” was a void act; “ void things are no things.” It was no payment of the $400.
    Second: The authorities fully establish the following positions :
    1. A payment in a counterfeit bill, supposed by the parties at the time to be genuine, is no payment.
    2. It is the same as to payment in the bill of a broken bank, supposed by the parties to be solvent.
    3. Payment for goods, or, of a pre-existing debt; in the note of a third person, who proves to be insolvent, is no payment, unless it be made affirmatively to appear that there is “ a ‘ clear and special agreement that the vendor shall take the: ‘ paper absolutely as payment.”
    
      These cases are not precisely the same, in point of fact, with that at bar, but the principle governing them is, we apprehend, precisely the same., ■ ■
    Wildman parted with his property “ without receiving the compensation which was intended.” He “ received, by mistake, a thing in payment different from what was due.” It being “of no value, the creditor might consider it as waste, paper, and resort to his original demand.” “ It is a maxim of ‘ the law, that the loss is to him who was the owner at the time ‘ such loss happened, if both parties were ignorant of the loss ‘ at the time of making their contract.” “ When a man pays ‘ a debt, the medium of payment must turn out to be what he ‘ represented it to be at the time of payment.” Markle v. Hatfield, 2 Johns. Rep. 455 ; Johnson v. Weed, 9 Johns. Rep. 309; Ontario Bank v. Lighthody, 13 Wend. Rep. 101; also, Vanshaick, Senator, in same case; JDarst v. Brockway, 11 Ohio Rep. 471.
    Third: The common count, for land sold, is sufficient to maintain the action. 1 Chitty’s Pleading, 338.
    Fourth: It was not such a special exchange of property, as that the plaintiff below was bound to declare upon it specially as such. Porter v. Talcott, 1 Cowen, 359, is a thorough examination of the authorities on this point, and fully sustains our position.
    Fifth: The plaintiff below was not bound to, nay, he could not rescind the contract. The land was deeded, and possession given, to Taft; personal property had been roceived and appropriated by Wildman. No contract is to be rescinded, except the parties can be placed in statu quo. When possession has accompanied the contract, the parties cannot be placed in statu quo. Hunt v. Silk, 5 East’s Rep. 449; Caswell v. Black Biver Manufacturing Company, 14 Johns. Rep. 453.
    The question made by the plaintiff in error is, in substance, this: The vendor having conveyed, the vendee, by mistake, failing to pay as he undertook to do, the vendor is bound to demand a rescission of the contract; that cannot be law.
    
      Sixth: The rule of damages, as held on the circuit, was right. The parties themselves had fixed the price of the land, and neither Court or jury had authority to make a new contract for them.
   Wood, C. J.

The question submitted for our consideration in this case, is, did the Supreme Court err in the instructions given to the jury ?

The counsel for the plaintiff in error have submitted an argument close, logical and able. It does much credit to their ingenuity, but we are, nevertheless, unable to adopt their views, as applicable to this case. They claim the action is founded upon a supposed rescission of the contract, as to a part of the consideration, the certificates of discharge, without rescinding the agreement in toto, by tendering back the money received, and the certificates of discharge, and demanding a reconveyance of the land, when the contract formed, it is said, but a single transaction, and is entire. No principle is better settled than that a party who would rescind an agreement, must place his adversary in statu quo. If he have received any thing of value, he must offer to restore it or he will not be permitted, by rescinding his agreement, to recover for what he has advanced by reason thereof. The charge of the Court was not inconsistent with any principle here laid down. It does not appear from the record, these honorable discharges were of any intrinsic value whatever; certainly not, in the hands of the purchaser, because, by the laws of the United States, the assignment was absolutely void. Neither does it appear from the record, that they were of value in the hands of the seller, for it is not shown, that the period of his enlistment or his term of service in the army of the United States entitled him to any bounty in land from the government. Under such circumstances, their return was of no importance to the rescission of the agreement. Neither the necessity of a return of those certificates, however, nor of the money received, to enable the defendant in error to recover on the trial, appears to have been made a point in the defence. The bill of exceptions does not show that any instructions were asked of the Court, and it is, therefore, no error that they did not charge the jury on that point, nor would it have been had no charge at all been given to the jury.

But there is nothing in the record to show that there was any claim to have this agreement rescinded by the defendant in error. On the other hand, he counts upon it specially in his declaration, and relies for a recovery on the breach of it by the plaintiff in error, in not delivering two certificates, which would entitle the defendant in error to the contemplated land, and for this failure in making part payment for the land conveyed, damages are sought. This is, in fact, the whole case : If A. convey land to B. and agree to receive payment in cash and other specified property, and the cash only is paid, cannot the vendor sue for the value of the property without returning the cash and demanding back the land? We think he can, and there is nothing more sought or charged by the Court in the case at bar. The' jury have found that these parties acted in the sale and transfer of these certificates, under a mutual mistake.

The law is: If C. receive of D. a thing represented to be valuable, and which C. supposes is so, in payment of a debt, but which is in fact of no value, C. may sue on the original demand for the consideration, as if no payment had been made, and quo ad hoc, treat the thing received as no payment. This transaction was not a barter, however, or exchange of property, as presented in the record, but the sale of a farm, to be paid in cash, and certificates which would entitle the vendor to other lands, and as this part of the consideration failed, the the court did not err, in our opinion, in saying a recovery might be had under the limitations and restrictions set out in the bill of exceptions.

But it is said the Court erred in the rule of damages given to the jury; that the true rule would be, the value of the property sold. The law, however, permits parties, in their agreements, to fix their own terms, conditions and prices: and as they had estimated the certificates at $400, the Court did not err, we think, in holding that amount, with the interest thereon from the time of their delivery, to be the rule of damages.

We are, therefore, of the opinion the judgment' should be affirmed, with costs.

Birchard, J., having been counsel with one of the parties, took no part in this decision.  