
    STRONG v. WATROUS.
    Rescission of a contract — articles tendered — goods sold.
    Upon a contract to pay for land in specific articles, and the balance in cash, a tender of the articles is equivalent to a delivery; and if the vendor of the land rescind the contract by conveying to another, the articles tendered may be sued for as goods sold.
    The rescission of the contract under such circumstances, does not throw the property in the articles upon the purchaser, unless at his option.
    Error to the Common Pleas. The suit below was assumpsit for work, goods sold, and money. Plea, non assumpsit, with notice of setoff.
    On trial the plaintiff below proved that the defendant sold him land, for which he was to pay a clock, a wagon, and the balance in *money. The clock and wagon were delivered and deemed [374 equal to the price of the land, but it was left to G. B. and E. B. to appraise. They did so, but it did not appear the defendant had notice, or that the wagon was before them. The defendant after-wards tendered the balance, which was refused, and the defendant sold the land to another. There was no evidence of a demand of the clock and wagon after the tender, or that the defendant had sold them.
    Upon this evidence, the plaintiff asked the court to charge the jury, that if the contract for land had been rescinded by the defendant’s refusal to complete it, it was likewise rescinded as to the delivery of the clock and wagon, and they remained in the defendant’s hands, without reference to the contract, and their value could not be recovered in this suit, as goods sold. The court refused the instructions asked for, but did instruct the jury, that if the contract was rescinded, the plaintiff might recover for the property delivered on the contract. There was a verdict and judgment for the plaintiff. The above matters being set out in a bill of exceptions, it is assigned for error, that the court erred in refusing, and in giving, the charge to the jury.
    
      Giddings and Wade for the plaintiff in error.
   LANE J.

We concur in opinion with the Common'Pleas, both as to the charge given, and that refused. The judgment is affirmed, with costs.  