
    Alfred Seymour versus Caleb Bennet.
    Of rescinding contracts, and the rights of the parties consequent thereon.
    [One who claims to rescind a contract for non-compliance of the other party, must have been ready and offered to perform his own part. An offer to settle and pay what balance shall be found due by one party, followed by a refusal of the other party to look into the account or settle, does not amount to a legal tender. — Ed.]
    This was an action of assumpsit, brought to recover one half ot the value of a dwelling-house, built by the plaintiff upon the land of the defendant. The declaration contained counts for work- and labor, for goods sold and delivered, for money had and received, and money laid out and expended, and also for the price or value of a house sold by the plaintiff to the defendant, 
    
    
      * The facts which the plaintiff undertook to prove, in support of his action, at the trial had at the last April term in this county, upon the general issue, before Jackson, J., were, that, in the year 1807, the defendant agreed to sell to the plaintiff and his father a small piece of land, on which they proposed to build a house. The price of the land was one hundred dollars. No precise time was fixed for the payment; but the defendant was to give them a deed for conveying the land, whenever they should pay that price, with lawful interest; and he agreed that they might immediately take the land, and proceed to build their house. They proceeded accordingly, the defendant being occasionally present, advising them how to proceed, and fully apprized of their doings. They finished the house in November, 1807, and then removed into it. The plaintiff continued to occupy it until December, 1810, when he removed into another house in the neighborhood, where he had ever since resided.
    Nothing more appeared to have taken place between the plaintiff and the defendant until September, 1816, just before the commencement of this action ; when the plaintiff made a formal demand of the defendant, for payment of one half the price or value of the house, and of the rent of it, or to be permitted to use it himself.
    In 1810, the plaintiff’s father had given to the defendant a common deed of release or quitclaim of the same land, which,-however, the father alleged was intended only as a mortgage, or security for moneys borrowed of the defendant by him. In 1813, the plaintiff’s father proposed to settle with the defendant for the moneys sc borrowed, and to pay all that was due therefor, and also the whole that was due for the land, and demanded a deed for the conveyance thereof to himself and the plaintiff. But the defendant refused to look into the accounts, or to make any settlement, or to give any deed. The plaintiff’s father did not at that time make a formal tender of the money; but he testified that he had made provision to procure it, and should have procured it, as soon as the amount due had been liquidated.
    * The judge, being of opinion that the action could not be maintained upon these facts, directed a nonsuit, subject to the opinion of the whole Court.
    
      Jones and Dwight argued for the plaintiff.
    The statute of frauds does not apply to this case. The plaintiff does not demand an execution of the contract, but relies on the money counts. This action will lie where the defendant is bound in equity and good conscience to pay money. The facts show a case of money paid by the plaintiff on a consideration which has failed. Suppose A agrees to sell a house and land to B, but is not ready to execute his deed; and he permits B to make repairs on the house, and then wholly refuses to make a deed. In such case, B could recover back the money he had expended. 
    
    The statute of frauds receives the same construction in a court of equity, as in a court of law; and where chancery would compel the execution of a contract, a court of law will give damages for the breach or non-performance of it.
    If the plaintiff cannot recover, it will follow that he and his father were trespassers, while they were building the house, relying' on the good faith of the defendant.
    If it is objected that the action should be joint, it is a sufficient answer that the contract is rescinded ; and, further, that the .release made by the plaintiff’s father was a severance of the contract; and being with the assent of the defendant, the plaintiff is entitled to his several action. 
    
    
      Whiting and Sherrill for the defendant.
    
      
      
         [ Wells vs Banister, 4 Metc. 514. — Doty vs. Gorham, 5 Pick. 487. — Aldrich vs. Latham, 6 N. H. 555. — Harris vs. Gillingham, 6 N. H. 11. — Ashman vs. Williams, 8 Pick. 402. — Morey vs. Darling, 8 Pick. 288. — Woodruffe vs. Halsey, 8 Pick. 333. — Osgood vs. Howard, 6 Greenl. 452. — Washburn vs. Sproat, 16 Mass. Rep. 449 — Ed.]
    
    
      
      
         11 Mass. Rep. 347, Boyd vs. Stone.
      
    
    
      
      
        1 Esp. Dig. 3. — 1 Esp. Rep. 150. — 3 B. & P. 162. — 5 Burr. 2659. —- 5 Johns 85, 272.—9 Mass. Rep. 510. — 2 Day’s Rep. 437.
    
   Per Curiam.

If the contract set forth in the declaration had been rescinded by mutual consent, or if the defendant had done any act by which it became impossible to perform it, an action would lie for the consideration paid, and perhaps for the labor and services performed, by the plaintiff, pursuant to the contract; and we do not see that the statute of frauds would interpose an obstacle.

But the case reported does not show such a state of * things. On the contrary, it shows that the plaintiff alone claims to rescind the contract, without offering to perform what he had undertaken on his part. The deed was to be given on payment of a hundred dollars by the plaintiff and his father. That sum has not been paid or tendered. An offer by the father to settle, and a declaration that he would pay. the balance, do not amount to a tender; for it does not appear that there were any accounts between the parties, necessarily connected with this contract. The motion to set aside the nonsuit is overruled, 
      
      
         [Smith vs. Burnam, 3 Sumner’s R. 435.— Shepherd vs. Spauldings 4 Met. 416 — Ed.]
     