( Montgomery v. Meyerstein, 186 Cal. 459 [ 199 P. 800]. Compare Elterman v. Hyman, 192 N.Y. 113 [127 Am. St. Rep. 862; 15 Ann. Cas. 819, 84 N.E. 937]; Haile v. Smith, 113 Cal. 656 [45 P. 872]; Benson v. Shotwell, 87 Cal. 49 [21 P. 249, 681]; Harder v. Allred, 61 Cal.App. 394 [ 214 P. 1017]; Kane v. Ott, 73 Cal.App. 124 [ 238 P. 126]; 39 Cyc. 2031, 2037; 16 Cal. Jur. 299; 25 Cal. Jur. 812.) Montgomery v. Meyerstein, supra, holds that section 3050 of the Civil Code may be availed of to enforce a lien for money paid under a contract to purchase real estate where there is a failure of consideration, but that the section is not limited to failure of consideration alone.

[7] No reason being shown for not raising the point in the opening brief, it does not deserve consideration. ( Graner v. Hogsett, 84 Cal.App.2d 657 [ 191 P.2d 497].) [6b] We may say, however, that interest should have been allowed ( Kane v. Ott, 73 Cal.App. 124, 128 [ 238 P. 126]), and that it is one of the matters to be considered by the trial court in balancing the equities. A considerable discretion rests with that court in determining "what justice may require," in the way of compensation due from plaintiffs upon rescission of their purchase.

When rescission is granted the vendee, he is entitled not only to a return of so much of the purchase money as he has paid, but to interest thereon from time of payment. (3 Black on Rescission and Cancellation, 2d ed., sec. 632, p. 1532; 39 Cyc., p. 2074; Yule v. Miller, 80 Cal.App. 609, 252 P. 733; Kane v. Ott, 73 Cal.App. 124, 238 P. 126; Mann v. Campbell, 198 Ky. 812, 250 S.W. 110; Harris County Inv. Co. v. Davis (Tex.Civ.App.), 230 S.W. 761; McDonald v. Whaley (Tex.Civ.App.), 228 S.W. 313; Marsh v. Lorimer, 164 La. 175, 113 So. 808.) As a general rule, in an action or suit for the purchase money paid, the purchaser may recover the purchase price paid, with interest on such amount at the legal rate. (39 Cyc., p. 2070.