
    JAMES FULLAGER, Appellant, v. EMILY REVILLE, Respondent. THE SAME v. THE SAME.
    
      Contract—rescission of—effect of.
    
    A contract rescinded, waived or abandoned, cannot be resuscitated by the act of one party to it.
    A contract rescinded *in part is rescinded in toto, unless some other intent be manifested.
    A party who agrees to, and accepts a rescission, without reserving, any claim under the rescinded contract, cannot hold the other party bound thereby.
    Appeals by the plaintiff in two actions brought by plaintiff; one to recover the sum of $500 liquidated damages, under a contract, the provisions of which are stated in the opinion of the court; the other, to recover certain interest and taxes. In the first action, the plaintiff’s complaint was dismissed; in the second, he recovered but twelve dollars, the remainder of his claim having been disallowed by the referee before whom the action was tried.
    
      W. G. Anthony, for the appellant.
    
      Gassedy <& Brown, for the respondent.
   Tappen, J.:

The plaintiff agreed to sell, and the defendant to buy, a house and lot in Newburgh, on certain terms. The agreement was in writing, and the defendant went into possession as vendee under a contract for the sale of lands. The first installment of $450 was paid by the defendant, but- she failed on the other payments of principal. She made certain payments toward the interest, insurance and taxes, but, on the 12th of May, 1873, she was in arrears to the plaintiff for these items, to the amount of $339 for interest, and thirty-nine dollars for taxes. The contract contained a clause by which the sum of $500 was declared fixed and agreed upon as liquidated damages, to be paid by the party failing to perform.

On the 12th of May, 1873, the defendant executed and delivered to the plaintiff, indorsed upon the contract of purchase, the following instrument:

I, Emily Reville, within named, in consideration of one dollar to me paid by James Fullager, the receipt whereof is hereby acknowledged, do hereby quitclaim, release and surrender to said Fullager, all my right, title and interest in the property within described, and in the within contract; and I do hereby yield up and surrender possession of said property to said Fullager, and direct all tenants in possession under me, to pay the rent to said Fullager, and surrender possession to him at the expiration of their lease.
“Witness my hand and seal, May 12, 1873.
[l. s.] “EMILY REYILLE.”

And the plaintiff thereupon retook the premises, and went into possession free and discharged from any contract with the defendant. Thereafter the plaintiff brought two actions against the defendant; one to recover the sum of $500, as liquidated damages under the contract. The action was dismissed at the trial. The other action was to recover the interest and taxes, before stated, which the defendant had neglected to pay the plaintiff. In this action the plaintiff had a recovery of twelve dollars, being for rent which defendant had collected of a subtenant for the month of May, 1873, and which she had agreed to pay the plaintiff. The remainder of the plaintiff’s demand was rejected by the referee, on the decision of the case. The opinion will apply to both actions.

The defendant’s liability depends upon the original contract of purchase, and the plaintiff’s claims against the defendant arise entirely out of that contract, and it was subsequently mutually rescinded. This rescission destroys the contract, and terminates the liability of either party to the other, unless some right he reserved in the terms of rescission. We use the term “ mutually rescinded,” because, while the agreement of rescission was signed by the defendant (the vendee) only, it was accepted by the plaintiff, the vendor, and the rescission, surrender and release accepted by the plaintiff put an end to the contract.

A contract rescinded, waived or abandoned, is dead, and cannot be resuscitated by the act of one party to it.

That the rescission of an executory contract destroys it as to both parties, is decided in Healey v. Utly, De Peyster v. Pulver, and cases cited; and in Battle v. Rochester City Bernik.

It is held in a number of cases, that if a contract be changed, the action must be upon the modified contract.

In the case at bar, the contract of rescission reserved no rights to the plaintiff against the defendant, and was fully performed by the defendant. It is said in Raymond v. Bearnard, that an agreement rescinded in part is rescinded m toto, unless some other intent be manifest. From all the authorities and the reason of the case, it is clear that one party, who agrees to and accepts a rescission without reserving any claim under the rescinded contract, cannot hold the other party thereto.

The decision in each of these cases was, therefore, correct, and the judgment in each of them should be affirmed, with costs.

Present—Barnard, P. J., Tappen and Donohue, JJ.

Judgment affirmed, with costs. 
      
       Wood v. Perry, 1 Barb., 114, and cases cited.
     
      
       1 Cow., 354.
     
      
      
         3 Barb., 284.
     
      
       3 Com., 88.
     
      
       Baldwin v. Munn, 2 Wend., 399, 587; Philips v. Rose, 8 Johns., 392; Freeman v. Adams, 9 id., 115.
     
      
       12 Johns., 274.
     