This is an action upon an alleged guaranty. The defendant indorsed notes to the amount of over $5000, which the plaintiff held against the defendant’s brother. The plaintiff maintains that the defendant indorsed them as an act of guaranty, receiving fifty dollars from the plaintiff as a consideration therefor. The defendant denies this, and says that he made the indorsement without any consideration, and as an act of accommodation to enable the plaintiff to get the notes discounted at a bank. He admits, however, that at the time of the indorsement he received the sum of $50 from the plaintiff, but denies that it had anything to do with such indorsing, and claims that it was a sum he then borrowed of the plaintiff, and that it has since been repaid. At the trial the defendant also set up, that, even if it should be shown that he made a guaranty as alleged, he was led into it by the fraud of the plaintiff. It appears that the $50 was afterwards, and before suit brought, returned or repaid to the plaintiff by leaving it upon his office table, and by him retained.
• A question arises whether if the $50 was returned by rhe defendant as borrowed money, and not for the purpose of rescinding the contract, the defendant would be in a position to set up that he had been defrauded in making a contract of guaranty, if one was made. But a rescission of a contract does not necessarily consist in restoring the consideration that was received as an inducement for making it, although such an act would ordinarily be requisite before a rescission could be made. To rescind is to *350treat as a nullity. But if there is no return a waiver of the fraud might be implied. In order to rescind, the defendant must put the parties in statu quo, or do all that he can towards it. It is impossible in this case to return the $50 again, as it is already in the plaintiff’s possession. The parties are really in the same position as if no contract had been made. That is all the law requires. The defendant disavows the contract, whatever it was, and treats it as a nullity.
A witness for the plaintiff on cross-examination, and without objection, testified that a suit prior to this one was brought against the defendant on these notes in the name of the First National Bank of Bath, for the plaintiff’s benefit. The defendant put in the record of the judgment of the case, showing that the plaintiff became nonsuit, to the introduction of which evidence the plaintiff in his brief says an objection was made, though the case does not show it. Though the evidence admitted was of very little consequence, one way or the other, still, if it had a breath of importance, it might be as a single thread in the web of craft and contrivance by which the defendant alleges, and the jury may have found, that he was circumvented.
H. H. Thompson, the maker of the notes, was allowed against the objection of the plaintiff to testify about certain transactions between himself and his business partner oh one side and the plaintiff on the other, consisting of notes and renewals and substitutions which resulted in the notes in suit. Nothing could be more clearly admissible. The evidence tended directly and necessarily to show plaintiff’s probable knowledge of the insolvency of the maker of the notes which the defendant was induced to indorse. The exceptions cannot be sustained.
Nor can the motion to set aside the verdict as rendered against evidence prevail.
The case was peculiarly one to be settled by a jury. It was a question off the credibility of parties and witnesses. To be sure, there was an inconsistency in the contradictory and duplex character of the defence set up by the defendant. But there were con*351siderations of importance which bore heavily against tlie testimony of the plaintiff. The inadequacy of consideration would itself be a very controlling fact with a jury, when for $50 the defendant assumed the responsibility of worthless paper, of the amount of over $5000, of the worthlessness of which the defendant knew nothing, while the plaintiff may be presumed to have known much.
Exceptions and motion overruled.
Appleton, C. J.; Cutting, DiciíeRson, Daneorth, and ViRGiN, JJ., concurred.