Nelson v. Sperling

COBEY, J.

This is an appeal from a judgment, following a trial to the court, that plaintiff recover from defendant the principal amount of $3,300. This is the amount that plaintiff paid defendant for an unassembled, prefabricated house known as a Lindal Malibu Kit, which was never delivered to plaintiff, because subsequent to this sale the manufacturer of the house did not deliver it. Defendant had won the house in a drawing. The trial court concluded that there had been an entire failure of consideration for the contract of sale and that therefore plaintiff was entitled to rescind the contract and to recover from defendant the purchase price he had paid her.

1

We affirm. Failure of the consideration for the obligation of the rescinding party, in a material respect

from any cause,

before such consideration has been received by him is a sufficient basis for unilateral rescission (see Civ. Code, § 1689, subd. (b) (4) ;

Ross

v.

McDougal,

12 Cal.App.2d 172, 181-182 [55 P.2d 574]) and such party may then recover any money or thing owing to him by the other party to the contract as a consequence of such rescission. (See Civ. Code, §

1692; Macowsky

v.

Irvine,

71 Cal.App. 77, 80 [234 P. 839].)

This is called restitution. Restitution means that the defendant must hand back to the plaintiff what the defendant has received from the plaintiff in the transaction. (See Rest., Contracts, § 348, com. a, § 350, Ill. 2; Rest., Restitution, § 108(a);

Utemark

v.

Samuel,

118 Cal.App.2d 313, 317 [257 P.2d 656];

Crofoot Lbr. Inc.

v.

Thompson,

163 Cal.App.2d 324, 331 [329 P.2d 302], hearing denied.)