parties contracted on the basis of the continued existence of the particular person or chattel.1 When property, real or personal, is destroyed by fire, the loss falls upon the party who is the owner at the time. If, from such destruction, the vendor of a house cannot perform his agreement to convey, he cannot recover or retain any part of the purchasemoney.2 The rule of the common law is the civil-law rule, that if one is employed in making up the materials or in adding his labor to the property of another, the risk is with the owner of the thing into which the labor is incorporated. One who, under a contract, is doing the ornamental woodwork in a building destroyed by fire while under control of the owner, may recover a quantum meruit for the work done prior to the fire. An accidental fire is not such act of God or vis major as will excuse the performance of a contract.s Where a res is seized by judicial process for debt, which carries with it a jus in re, as between debtor and creditor the maxim means that the destruction of the seized property, without fault of the debtor, works a payment of the debt to the extent of its value. Where third parties voluntarily join the seizing creditor in his proceeding, and unite, so to speak, in the seizure, also asserting claims which carry with them liens, the destruction of the property without fault of the debtor works a payment of their respective claims, to the extent of the value of the property destroyed, in the order of their priority.4 Where a vessel, before she breaks ground, is so injured by fire that the cost of repairs would exceed her value when repaired, and she is rendered incapable of earning freight, a contract of affreightment for the carriage of cotton, evidenced by a bill of lading providing for the payment of freight-money on the delivery of the cotton, is thereby dissolved, so that the shipper is not liable for any part of the money, nor for expenses paid for stowing the cotton. Ut res magis valeat quam pereat. That the thing may prevail rather than be destroyed: that the subject-matter may have effect, or the end be promoted, rather than be defeated. The courts aim to uphold, to preserve, not to destroy, written contracts, wills, statutes, all instruTaylor v. Caldwell, 113 E. C. L. *839 (1863), Blackburn, J.; Appleby v. Myers, L. R., 2 C. P. *658 (1867). 2 Wells v. Calnan, 107 Mass. 515-18 (1871), cases, Gray, J.; Snow v. Alley, 144 id. 551 (1887); Broom, Maxims, *238, cases. 3 Haynes v. Second Baptist Church, 12 Mo. Ap. 540-16 (1882), cases, Bakewell, J. Gill v. Packard, 4 Woods, 271 (1883), Billings, J.: 8. c. 17 F. R. 400. See also Viterbo v. Friedlander, 120 Cutting off; abrogating, canceling, annulling, nullifying, vacating, avoiding. Rescind. To annul a thing done; to vacate, set aside. Rescissory. Designed to abrogate, annul, avoid. Used, in particular, of the refusal of a party to a contract to be bound by it, because of alleged disability, mistake, or fraud operating at the time of the formal making; also, of the decree of a court of equity canceling a contract for cause shown. The right to rescind a contract of sale proceeds upon the ground that a party has been fraudulently betrayed into making the contract, and, having thus been induced to part with his own property, he may resume possession of it on returning that which he has himself received, thus placing the other party in the position he was in before the contract was made.4 Equity will rescind a purchase induced by a material misrepresentation of the vendor, though innocently made.5 The cancellation of an executed contract is an exertion of the most extraordinary power of a court of equity. The power ought not to be exercised in a clear case, and never for an alleged fraud, unless the fraud be made clearly to appear; never for alleged false representations, unless their falsity is certainly proved, and unless the complainant has been deceived and injured by them. The rule that he who seeks to rescind a contract of sale must first offer to return the property received, and place the other party in the position he formerly occupied, as far as practicable, prevails equally at the civil and the common law. It is a rule founded in natural justice, and requires that the offer shall be made by the purchaser to his vendor upon the discovery of the defect for which the rescission is asked. See 1 Bl. Com. 89; 2 id. 380; 95 U. S. 713; 106 id. 137; 108 id. 461; 109 id. 368; 59 Iowa, 325; 100 Mass. 113; 108 id. 393; 59 Miss. 96, 103; 89 N. C. 462; 92 N. Y. 345; Broom, Max. 565. 2 F. rescinder, to cancel: L. re-scindere, to cut off, annul. 3 Re-siz'-o-ry. 4 Snow v. Alley, 144 Mass. 551-57 (1887), cases, Devens, J. * Curtiss v. Hurd, 30 F. R. 733 (1887), cases. Atlantic Delaine Co. v. James, 94 U. S. 214 (1876), Strong, J.