Deemer, J.
1 [593]*5932 3 [592]*592The unusually long statement preceding this opinion seems to be necessary to properly understand the questions presented for our determination. The exchange of land referred to in the pleadings was made in Nebraska, on or about the nineteenth day of April, 1887, and it is practically undisputed that the parties made a mistake as to the subject-matter of the trade. The plaintiff and defendant went to see the Nebraska land which defendant claimed to own, it being the west one-half of section No. 15, in township No. 2 N., of range 14 W. The defendant, by mistake, pointed out the east half of the section! as his land, and plaintiff made the trade, believing that he was to receive the east half of the section in exchange for his land in Iowa. The east half of the land had a lake of living water, fed by underground springs, which was thought [593]*593to be valuable by tbe parties. There are no water privileges on the west half. There are some other things connected with the land which made the east half the more valuable of the two tracts. Some of the witnesses place the difference in value at one thousand dollars. Plaintiff did not discover the mistake until June, 1890, when he went to improve the land. Some correspondence then passed between the parties with reference to the matter, but no adjustment was had, and then plaintiff commenced his suit, filing his original petition on the first day of August, 1891. Defendant claims, and introduced evidence to show, that one tract of Nebraska land was as valuable as the other, and that, if there was any difference, it was in favor of the west half of the section; and he insists that, if this be true, plaintiff is not entitled to rescind. It is likely true, that proof of ■ such facts would be a complete defense to an action at law for fraud. But it is clear that it is not sufficient to defeat an action for rescission based upon mistake as to the subject-matter. Plaintiff had the right to receive just what he contracted for, and, if there was a mistake as to the subject-matter, then there was no meeting of the minds, — no contract between the parties. Under such circumstances a court of equity will, in a proper case, declare a rescission of the contract, although no damage would have resulted to plaintiff had he been content to abide by the trade. It is not a question of comparative values, but of mistake in the subject-matter, which invalidates the transaction. No citation of authorities is needed to support so elementary a proposition. It follows, then, that plaintiff is entitled to a rescission of the contract for mistake as to the subject-matter unless there be something else in the case which defeats his action. Defendant contends that plaintiff is not entitled to rescission, because he [594]*594allowed the Nebraska land to go to tax sale, and also incumbered it with a mortgage, after he received the deed therefor. It will be noticed that plaintiff, in his petition and amendments thereto, offered'to re-convey the Nebraska land, free and clear of all incumbrances, to the defendant, if the court so decree. As the suit was properly in equity, it was not incumbent on plaintiff to do more than make this offer. The court could, by proper orders, protect the defendant; and this it did in the decrees rendered. A statement that plaintiff was ready and willing to furnish and convey a clear title to defendant in the event a rescission was declared, was all that was necessary. The rule is different in actions at law, but this, as we have said, is not a law suit. Montgomery v. Shockey, 37 Iowa, 107; Seymour v. Shea, 62 Iowa, 708 (16 N. W. Rep. 196); McCorkell v. Karhoff, 90 Iowa, 545 (58 N. W. Rep. 913); Taylor v. Ormsby, 66 Iowa, 112 (23 N. W. Rep. 288); Binford v. Boardman, 44 Iowa, 53. It is said, however, that plaintiff did not, in fact, tender a deed and proper evidence of a clear title to the Nebraska land, in accordance with the orders of the lower court. We think, however, that the record does show, not only a willingness on the part of plaintiff to ' restore to the defendant the Nebraska land free and clear of all incumbrance, but an actual tender, not only of a warranty deed, but a deed from Hunt, who held the tax title on the land, a release of the mortgage executed by plaintiff thereon, proper evidence' that all taxes had been paid, and an abstract of title showing the land free and clear of all incumbrance. The originals of some of these papers have been filed' in this court for inspection, and we find them to be as appellee claims. Moreover, the defendant did not exercise the election he had to take the Nebraska land. On the contrary, he refused to perform that part of the decree which entitled him to a re-conveyance,- [595]*595and compelled plaintiff to elect to take the land and credit the value thereon as fixed by the court upon his judgment. We think the tender and offer made by the plaintiff was sufficient.
4 II. Defendant claims that plaintiff’s right of action is barred by his laches. The evidence shows that plaintiff did not discover that he had received a deed to the wrong land until June, 1890. He then had some negotiations looking to a settlement with the defendant, but these amounted to nothing, and he then, in April, 1891, commenced his action at law to recover damages for fraud. He did not learn of the mistake until defendant filed his 'answer, on October 81, 1891. On the sixteenth day of November following, the plaintiff filed an amendment ■ to his petition, asking for rescission on the ground ■ of - mistake. We do not think there was such delay after ■'the discovery of the mistake as defeats him of his remedy. It is true that unreasonable or inexcusable delay on the part of him who has the right to rescind, will amount to a waiver, and that one who has the right to ■repudiate must do so within a reasonable time after he has knowledge of the existence of the cause, or sufficient knowledge to put him upon inquiry as to the fraud, or mistake. But we think- this case is barren of such facts as ought to defeat plaintiff on the ground of delay in proceedings.
5 III. It is also claimed that plaintiff, by commencing his action at law, elected to stand by the contract, and that he cannot be allowed to plead mis-
take. This contention is squarely answered by the case of Smith v. Bricker, 86 Iowa, 285 (53 N. W. Rep. 250), and we need give it no further
attention.
[596]*5966 [595]*595IV. Defendant also claims that the suit is barred by the statute of limitations. The parties resided in ■Nebraska at the time the contract was made, and the [596]*596exchange was consummated in that state. Defendant pleads the statutes of the sister commonwealth in bar of plaintiff’s action, and claims that the action was barred within four years from the time the exchange was made. The record with reference to this matter, is somewhat peculiar. On the twenty-third of January, 1892, an order was made that the cause be heard on depositions. On the sixteenth day *of December, of the same year, the cause came on for hearing, and each party offered and introduced the depositions he had taken. Up to this time no notice had been given by defendant that he intended to introduce the statutes of the state of Nebraska. At the time of the introduction of the depositions, defendant produced one C. H.
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Deemer, J.
1 [593]*5932 3 [592]*592The unusually long statement preceding this opinion seems to be necessary to properly understand the questions presented for our determination. The exchange of land referred to in the pleadings was made in Nebraska, on or about the nineteenth day of April, 1887, and it is practically undisputed that the parties made a mistake as to the subject-matter of the trade. The plaintiff and defendant went to see the Nebraska land which defendant claimed to own, it being the west one-half of section No. 15, in township No. 2 N., of range 14 W. The defendant, by mistake, pointed out the east half of the section! as his land, and plaintiff made the trade, believing that he was to receive the east half of the section in exchange for his land in Iowa. The east half of the land had a lake of living water, fed by underground springs, which was thought [593]*593to be valuable by tbe parties. There are no water privileges on the west half. There are some other things connected with the land which made the east half the more valuable of the two tracts. Some of the witnesses place the difference in value at one thousand dollars. Plaintiff did not discover the mistake until June, 1890, when he went to improve the land. Some correspondence then passed between the parties with reference to the matter, but no adjustment was had, and then plaintiff commenced his suit, filing his original petition on the first day of August, 1891. Defendant claims, and introduced evidence to show, that one tract of Nebraska land was as valuable as the other, and that, if there was any difference, it was in favor of the west half of the section; and he insists that, if this be true, plaintiff is not entitled to rescind. It is likely true, that proof of ■ such facts would be a complete defense to an action at law for fraud. But it is clear that it is not sufficient to defeat an action for rescission based upon mistake as to the subject-matter. Plaintiff had the right to receive just what he contracted for, and, if there was a mistake as to the subject-matter, then there was no meeting of the minds, — no contract between the parties. Under such circumstances a court of equity will, in a proper case, declare a rescission of the contract, although no damage would have resulted to plaintiff had he been content to abide by the trade. It is not a question of comparative values, but of mistake in the subject-matter, which invalidates the transaction. No citation of authorities is needed to support so elementary a proposition. It follows, then, that plaintiff is entitled to a rescission of the contract for mistake as to the subject-matter unless there be something else in the case which defeats his action. Defendant contends that plaintiff is not entitled to rescission, because he [594]*594allowed the Nebraska land to go to tax sale, and also incumbered it with a mortgage, after he received the deed therefor. It will be noticed that plaintiff, in his petition and amendments thereto, offered'to re-convey the Nebraska land, free and clear of all incumbrances, to the defendant, if the court so decree. As the suit was properly in equity, it was not incumbent on plaintiff to do more than make this offer. The court could, by proper orders, protect the defendant; and this it did in the decrees rendered. A statement that plaintiff was ready and willing to furnish and convey a clear title to defendant in the event a rescission was declared, was all that was necessary. The rule is different in actions at law, but this, as we have said, is not a law suit. Montgomery v. Shockey, 37 Iowa, 107; Seymour v. Shea, 62 Iowa, 708 (16 N. W. Rep. 196); McCorkell v. Karhoff, 90 Iowa, 545 (58 N. W. Rep. 913); Taylor v. Ormsby, 66 Iowa, 112 (23 N. W. Rep. 288); Binford v. Boardman, 44 Iowa, 53. It is said, however, that plaintiff did not, in fact, tender a deed and proper evidence of a clear title to the Nebraska land, in accordance with the orders of the lower court. We think, however, that the record does show, not only a willingness on the part of plaintiff to ' restore to the defendant the Nebraska land free and clear of all incumbrance, but an actual tender, not only of a warranty deed, but a deed from Hunt, who held the tax title on the land, a release of the mortgage executed by plaintiff thereon, proper evidence' that all taxes had been paid, and an abstract of title showing the land free and clear of all incumbrance. The originals of some of these papers have been filed' in this court for inspection, and we find them to be as appellee claims. Moreover, the defendant did not exercise the election he had to take the Nebraska land. On the contrary, he refused to perform that part of the decree which entitled him to a re-conveyance,- [595]*595and compelled plaintiff to elect to take the land and credit the value thereon as fixed by the court upon his judgment. We think the tender and offer made by the plaintiff was sufficient.
4 II. Defendant claims that plaintiff’s right of action is barred by his laches. The evidence shows that plaintiff did not discover that he had received a deed to the wrong land until June, 1890. He then had some negotiations looking to a settlement with the defendant, but these amounted to nothing, and he then, in April, 1891, commenced his action at law to recover damages for fraud. He did not learn of the mistake until defendant filed his 'answer, on October 81, 1891. On the sixteenth day of November following, the plaintiff filed an amendment ■ to his petition, asking for rescission on the ground ■ of - mistake. We do not think there was such delay after ■'the discovery of the mistake as defeats him of his remedy. It is true that unreasonable or inexcusable delay on the part of him who has the right to rescind, will amount to a waiver, and that one who has the right to ■repudiate must do so within a reasonable time after he has knowledge of the existence of the cause, or sufficient knowledge to put him upon inquiry as to the fraud, or mistake. But we think- this case is barren of such facts as ought to defeat plaintiff on the ground of delay in proceedings.
5 III. It is also claimed that plaintiff, by commencing his action at law, elected to stand by the contract, and that he cannot be allowed to plead mis-
take. This contention is squarely answered by the case of Smith v. Bricker, 86 Iowa, 285 (53 N. W. Rep. 250), and we need give it no further
attention.
[596]*5966 [595]*595IV. Defendant also claims that the suit is barred by the statute of limitations. The parties resided in ■Nebraska at the time the contract was made, and the [596]*596exchange was consummated in that state. Defendant pleads the statutes of the sister commonwealth in bar of plaintiff’s action, and claims that the action was barred within four years from the time the exchange was made. The record with reference to this matter, is somewhat peculiar. On the twenty-third of January, 1892, an order was made that the cause be heard on depositions. On the sixteenth day *of December, of the same year, the cause came on for hearing, and each party offered and introduced the depositions he had taken. Up to this time no notice had been given by defendant that he intended to introduce the statutes of the state of Nebraska. At the time of the introduction of the depositions, defendant produced one C. H. Mackey, as a witness, and proposed to examine him orally. Thereupon plaintiff objected, because the case was set down for trial on depositions, and oral evidence was inadmissible. The court made this order upon the objection: “Taken, subject to objection, to be determined with the case.” The witness thereupon identified a certain book purporting to be the Compiled Statutes of the State of Nebraska. Defendant then offered certain sections of this book, with reference to the statute of limitations, in evidence. His offer was of sections 5-16, inclusive, found on pages 858-855. To this book the plaintiff offered objections, and the same ruling was made by the court that it made upon the previous objections to Mackey’s evidence. It may be well to state that, before the cause was called for hearing, and on the ninth day of December, the plaintiff filed a motion for an order giving him fifteen days in which to file rebutting testimony, based upon the ground that no time was fixed within which such evidence should be taken, and upon the further ground that plaintiff had never had any notice of the filing of defendant’s depositions, [597]*597This motion was supported by affidavits, showing that certain evidence in rebuttal was in existence, and that no notice was ever given plaintiff of the filing of defendant’s evidence. This motion was overruled the day the cause was called for trial. After the submission of the case, and while it was still in the hands of the court, the plaintiff, on the twenty-first day of February, 189B, filed a motion to set aside the submission, for the reason that the case was triable on depositions only, and that, at the time of the submission, and after the court had refused a continuance asked for by plaintiff, the defendant introduced certain documentary and parol evidence; this being the evidence of Mackey and the Nebraska Statutes, before referred to. We do not find that any ruling was ever made upon this motion, unless it be comprehended in some of the decrees rendered by the court below. But, from the facts found and the decrees as entered, it appears to be quite certain that the court, in considering the case and making the decrees and orders it did, virtually sustained plaintiff’s objections to the testimony of Mackey and the statutes of the State of Nebraska, although it must be conceded that no such order was expressly made of record. .
7 [598]*5988 [599]*5999 10 [597]*597At the time of filing the motion to set aside the submission, the plaintiff filed an amendment to his petition to conform it to the proof, in which he alleged that the defendant became a non-resident of the state of Nebraska in January, 1889, and that he has ever since been such non-resident, and that the statute ceased to run at the time the defendant left the state where he formerly resided. The plaintiff claims in argument that, had he been allowed to do so, he could have shown by competent proof that by the statutes of the sister state that their operation is suspended during the time of the defendants [598]*598absence from that state. He further contends that there is no showing that the laws of Nebraska, with reference to absence from the state, are not the same as in this state, and that, in the absence of evidence, they are presumed to be the same; and he finally insists that the amendments to his, petition relate back to the time of the filing of the original, and that his suit was commenced in time. We do not find it necessary to pass upon but one of these claims. If we be mistaken in our view of what the court held with reference to the’ evidence of Mackey and the Nebraska statutes, it is nevertheless true that the case is triable here de novo,■ and we are to consider only such evidence as we believe to be offered at a proper time, and competent’ and relevant to the issues. Now, while the lower court might, iff the exercise of a sound discretion,, have allowed this evidence with reference' to the statutes of limitations to be introduced orally,. and without notice to the plaintiff, yet in view of the time at which it was offered, it should not have been received at the time it was offered without allowing the plaintiff an opportunity to rebut it. No notice had been given plaintiff previous to the hearing, that defendant would introduce this documentary evidence; and the same may be said with, reference to the tax deed to Hunt, and the, mortgage executed by plaintiff on the Nebraska land; and no effort was made to take the deposition of the witness Mackey before the day of trial. As we,'' understand the practice in such matters, it is incumbent on either party desiring to offer documentary evidence, where the case is ordered to be submitted on depositions, to give notice thereof to the opposite party; and while the court may, in the exercise of a, proper discretion, permit such evidence to be offered fyt the trial, and may also allow oral testimony to be. [599]*599taken, yet it ought to allow the other party to rebut such evidence when it is received. Presuming, as we must, in favor of the regularity of the proceedings of the trial court, it follows that he must have sustained the objections to the evidence now under consideration; else he would have permitted plaintiff to have offered evidence in rebuttal. But, as we have already said, if this be not true, we are constrained to hold, in view of the record made, that such evidence can not be considered on this appeal, for the reason that the objection to the evidence should have been sustained. It is well settled practice for trial courts, in equity cases, to make no ruling on objections to evidence, and the failure of the court to do so in this case is not unusual. The case comes to us with the objections interposed by counsel in the record, and we make such rulings thereon as ought to be made. It follows, then, that we cannot consider the Nebraska statutes, and must look to the law of this state, which is presumed to be the law of Nebraska, to determine whether the action is barred. The action is not barred under our law, for two reasons: First, because the plaintiff did not discover the mistake until a short time before he filed -his amendment to the petition; second, because the undisputed evidence shows that defendant removed from the state of Nebraska in January, 1889, and has since been absent therefrom. The running of the statute is suspended during the time the defendant was absent from Nebraska. The action was not barred here, because sufficient time had not elapsed at the time the amendment to the petition was filed. Our conclusions on this branch of the case find some support in the following cases: Gardner v. Trenary, 65 Iowa, 646 (22 N. W. Rep. 912); Sweet v. Brown, 61 Iowa, 669 (17 N. W. Rep. 44); Harlan v. Porter, 50 Iowa, 446; [600]*600Blough v. Van Hoorebeke, 48 Iowa, 40; Hasner v. Patterson, 70 Iowa, 681, (28 N. W. Rep. 493); Cook v. Smith, 50 Iowa, 700; Van Bogart v. Van Bogart, 46 Iowa, 359; Putney v. O’Brien, 53 Iowa, 117 (4 N. W. Rep. 891).
Y. Defendant contends that the judgment is for more than the amount claimed in the petition. The original petition asked judgment for one thousand five hundred dollars and interest. ' The judgment was for one thousand six hundred and seventeen dollars and sixty-one cents. One thousand five hundred dollars, with interest at six per cent, from August, 1891, amounts to more than the court awarded.
YI. Appellant also says there is no method of arriving at the judgment by any mathematical computation. We cannot agree with him in this. It is not necessary to set out the figures. Sufficient is it to say that we discover no error. The judgment and decree of the district court are right, and they are affirmed.