The opinion
Tom Glaze, Judge, dissenting. I respectfully dissent. Primarily, I part with the majority because, in my opinion, rescission is inapplicable to the facts in this case. Appellee continued operation of the liquor business three months after she learned it could not be licensed in her name. During that period, the ABC enforcement officer urged appellee to apply for a license. Although he opined appellee could not obtain a license in her name, the officer testified that she could have obtained one by incorporating the business, and appointing a manager. Appellee made no efforts to acquire a license and her inaction not only resulted in a heated discussion between her and the ABC officer, büt also led to a scheduled hearing of the ABC Board to cancel appellant’s license. Appellant subsequently surrendered his license to the Board.
As stated in Herrick v. Robinson, 267 Ark. 576 , 595 S.W.2d 637 (1980), a condition precedent to an effective rescission requires that the party rescinding must restore, or offer to restore, the opposite party to his former position. Here, appellee made no attempt to license the business during the months she operated it. In failing to act, she also placed appellant’s license in jeopardy. Obviously, a liquor store without a license has little value. By the time she elected to close the business, the appellee could in no way restore appellant to the position he was in when they entered their agreement. Permitting appellee to rescind on these facts — particularly when i t appears she could have obtained a license — I believe is error.
Cooper, J., joins in this dissent.