Napier v. Adams

ON MOTION EOR REHEARING.

Hines, J.

In one ground of the motion for rehearing it is insisted that we overlooked section 4305 of the Civil Code, which requires that a party seeking rescission must promptly, upon discovery of the fraud, restore or offer to restore to the other whatever he has received by virtue of the contract, if it be of any value. This question was not expressly raised by demurrer to the petition, nor was it raised or discussed in the brief of counsel for the defendant. But, conceding that this point should be considered under the general ground of demurrer that the petition…