Carnicle v. Swann

In footnote 1, the majority decides to ignore SDCL 21-12-2 because it was not argued as a bar to recovery. This court cannot ignore the applicability of a statute simply because it was not argued. This court must decide whether the appellee established the statutory elements of rescission and one of the elements is contained in SDCL 21-12-2. This statute has been interpreted to require the party seeking the rescission to offer to give back what he received under the contract. Mankey v. Hoyt, 27 S.D. 561, 132 N.W. 230 (1911).

I concur specially to show that I have considered this statute and…