It is averred that plaintiffs were entitled to a direction of judgment in their favor upon the ground that the evidence in the case failed to show either a conditional delivery of the contract by defendant to plaintiffs’ agent, Dalton, or that such agent had committed any fraud by which defendant was induced, as claimed, to make, execute, and deliver it. The proof of the delivery of the contract is undisputed, and we find nothing in the evidence to show that the contract was not to be effective unless some future specified act was performed or some event occurred. No evidence aside from that of defendant was offered on this subject, and from that testimony it is clear that the delivery of the contract to Dalton in its completed form was not a conditional de*113livery, but that tbe contract was executed and delivered as a completed agreement. So far as delivery was concerned, nothing further was required to complete it and make the agreement effective between the parties. TJnder these circumstances it devolved on the court to declare that there was a delivery of the contract to plaintiffs’ agent.

In respect to the fraudulent conduct of plaintiffs’ agent, which defendant alleges induced him to make and execute the contract, plaintiffs claim that the undisputed facts and circumstances show that the negotiations between Dalton and defendant, resulting in this- contract, were free from any material misrepresentations by Dalton, and therefore no grounds have been shown for an avoidance of the contract by defendant. The proof is uncontradicted that defendant declined to make a contract for the attendance of his daughter at plaintiffs’ college unless her classmates at the school she had theretofore attended should attend plaintiffs’ college at the same time; that Dalton thereupon represented to defendant that such classmates had determined to attend plaintiffs’ college for a course of instruction, and that he had secured contracts to that effect from the parents of three classmates, naming them; and that defendant was thereby induced to make, execute, and deliver the contract sued on. The falsity of these representations is not disputed, but it is averred that they do not constitute a representation material to the transaction embodied in the contract, and therefore do not constitute a fraud and cannot affect its validity. The representation was clearly germane to the transaction, and obviously was of such weight and importance to defendant as to induce him to bargain for a course of instruction for his daughter in plaintiffs’ college. The association with her former classmates while attending plaintiffs’ college was a matter of such substantial importance to defendant that he was justified in allowing it to determine his conduct in the transaction. This made the misrepresentation relevant and material to the negotiations, and furnished a *114substantial basis for the perpetration of a fraud. It also appears that the evidence on this issue is not in conflict, and it shows that the misrepresentation was made by Dalton and that it induced defendant to make and deliver the contract. The facts and circumstances showing fraud are so clear as to exclude any different inference from them, thus leaving nothing for the jury to determine, and called upon the court to decide as matter of law that the alleged fraud was established. Pratt v. Darling, 125 Wis. 93, 103 N. W. 229; Palmer v. Goldberg, 128 Wis. 103, 107 N. W. 478, and cases cited.

Under the terms of the contract, to compensate plaintiffs for giving his daughter a twelve months’ course of instruction in their business college, defendant obligated himself to pay them the sum of $120 in monthly instalments of $10, begin-nin'g on September 1st succeeding its execution in July. In the early part of October following defendant’s daughter was prepared-to enter upon the course of instruction, and then defendant became informed that none of her classmates'were in attendance at the college as Dalton had Represented they would be. Defendant thereupon omitted to comply with the agreement and refused to pay the amounts due and to have his daughter attend the college. Tie also claims to have mailed his copy of the contract to plaintiffs, but they testify that they never received it. No further steps were taken by either party to the contract until this action was commenced to enforce payment.

It is urged that defendant is estopped from interposing the ’defense of fraud for failure to give notice of rescission. This is claimed upon the well-established principle that, if a party to an agreement seeks total rescission on account of the fraud of the other party, upon being informed of the fraud he must repudiate the transaction promptly and return what he has received, in order to place the opposite party as nearly m statu quo as the circumstances will reasonably permit. The defendant omitted to comply with the terms of the agreement. *115At tbe time of such failure plaintiffs bad not parted with anything in reliance on it, and it is not shown that they incurred any liability on account of it. Presumably they stood in readiness to perform their part of the agreement in September if defendant should choose to enforce it. Up to this time the contract was an executory one. Defendant’s failure to comply with its terms was, in effect, a repudiation of it, and left plaintiffs, in relation to the contract, in the same position they were in at the time it was made. It does not appear that they thereafter changed their position in relation to it, or that they incurred any liability on account of it. The action of the defendant in refusing to send his daughter to the college and to pay the instalment as required by the terms of the agreement clearly informed plaintiffs that he refused affirmance of the contract, and left the parties practically in their original positions up to the time action was commenced. Under these circumstances nothing has transpired to operate as a waiver of the right of defendant to assert the fraud in avoidance of the agreement. 1 Page, Cont. § 136; 2 Parsons, Cont. (9th ed.) 780; 1 Bigelow, Fraud, 434 et seq.; Zang v. Adams, 23 Colo. 408, 48 Pac. 509.

Exception was taken to the ruling by which the court excluded proof of payment by plaintiffs to Dalton for his services in securing this contract, It is to be presumed that they paid for such services, but this fact can in no way affect plaintiffs’ or defendant’s rights under the issues in this case. Upon the considerations above stated defendant was'entitled to judgment in his favor.

By the Court. — Judgment affirmed.