Page:Federal Reporter, 1st Series, Volume 1.djvu/299

QfiEEN V. BETIS. 291 �The plaintiff testifies that a portion of the territory had been previously sold, and that he was tberefore defrauded ; but he does not daim that ail the territory had been previously sold, nor that the consideration for the assignment wholly failed. On the contrary, he admits that he made sales under the patent, and received some money therefor, though the amount is not specified. �It is evident, from the plaintiff's own statements upon this subject, that the contract of assignaient was voidable only, and not absolutely null and void. It was not a transaction which he oould of bis own notion disregard in toto. He could not proceed to sue upon the contract as if it had never been assigned. It was probably a case in which the plaintiff had the right to resoind the contract by taking the necessary steps. But to do thia he was bound to return, or offer to return, whatever of value he had received under the contract. He was bound to do whatever was in bis power to place the parties in statu quo, Bishop on Contracta, § 203, and cases cited in note. �But it is further insisted that the proof shows that after the execution of the assignment, and while it was outstand- ing, the plaintiff demanded a deed from Betts, and notilied him that the assignment to Winfrey was fraudulent, and that Betts then agreed virtually to convey to plaintiff, and did not insist upon the objection that the assignment and bis accept- ance thereof were outstanding. Here there is a serions conflict of testimony, but my conclusion is that the new promise is not established. Nor could it be upheld if proved, as it seems to bave been without consideration. Besides, ail the probabilities are against the correctness of plaintiff's version of this transaction. �It is not at ail probable that Betta, with a knowledge that the assignment, with his written acceptance thereon, was outstanding, voluntarily agreed to make the deed in disregard thereof, and at his own risk. These considerations lead inevitably to the conclusion that the plaintiff did not owu the cause of action when the suit was brought. ■ Gounsel bave discussed several other questions, to-wît: (1) ��� �