
    Green against Green.
    NEW YORK,
    May, 1828.
    To warrant a recovery as for money had and received, paid under a special con-contract6' S‘to convey land) a strict performanee must be the same as if he the .special ^^act its^ contract has r^cinded^or impliedly so, having been ^"aiongtime* or the party sought to be charged having acted inconsistent with it.
    a party covenanted to pay ¡^nsLhnentf on completing to have a^eedj and h? tool5 possession, and continued it for some time, making Thus where making par- ^ £nluyfl‘ ed to pay, and ^®k sion; in an action for money had and received to recover back the money paid, held, that it would not lie.
    And the covenant to pay being independent, held, no breach that the defendant had never any title to the land; for non constat, had the plaintiif paid, that the defendant might not have procured a title and conveyed.
    Assumpsit for money had and received; tried at the * Madison circuit, on the 4th Tuesday of March, 1827, before Williams, C. Judge.
    On the trial, a contract was proved between the parties, dated the 23d day of April, 1803, by which the plaintiff covenanted to pay the defendant $75, with interest, on the -*■ J . 23d of November then next, and the further sum in four years, with annual interest, to be paid on the 23d of April each year, which with the $75 and $25 to be paid the 1st of July then next, would make $4 per acre for half of lot 28, in township 18, iii the tract of 20 Townships; and the defendant éovenanted that, if the plaintiff should punctually perform on his part, then the defendant would execute to the plaintiff a good warranty deed of conveyance for the land; and it was mutually agreed, that if the plaintiff should fail to pay the $75, then the defendant should be no longer bound, but might,.at pleasure, abandon the contract; and, in such casé, the $75 should be paid as liquidated damages. The *parties bound themselves to the performance, under a penalty of $1000.
    It further appeared, that Jonathan Lawrence was formerly the owner of the whole of lot No. 28, and by his J agent, Judge Platt, gave a contract for the whole lot to William Green, the defendant, who thereupon, on the same day, gave a similar contract to the plaintiff. The whole lot contained 250 acres, and the plaintiff’s half 125 acres, The plaintiff immediately went into possession under his x j i In the rp. J Me contract, and in the summer following, paid $25. autumn, he paid $40, and in 1804, he paid $200. , plaintiff continued in possession and made improvements, until five or six years ago, when the defendant took possession. Green Burdick bought 50 acres of the plaintiff, and paid $250, which was intended for the defendant; but it did not appear that it was offered to him. It further appeared, that about 8 years ago, an ejectment was brought against the plaintiff, the defendant and Burdick. The defendant, at: the'same- time," forbade the < plaintiff doing "'any more work on the premises,- saying the c'Otitráct 'had ran out, and the plaintiff should not have the land,' and actually took" possession. - James Glapp,Esq., "agent for Lawrence, proved that'Wllliam Green’s contract-had not been fufilled, •and he- had offered'to-the plaintiff, the defendant- and Bur-dick, that if-each"would pay, $100, -he*would "give a cóntract to each'one. -The offer-was' not'cdmplifed -'with ; "but it appeared by other" testimony that the- plaintiff "was ready and "willing to complywith this- offer-" on his'part.
    It was furthér shown or-admitted," that the plaintiff had not paid up the amount of his contract ;",that he had beén - in- "possession- from 1803 to-1821, When thedeféndánt took possession.
    On these facts, the plaintiff’s counsel contended that the 'defendant had rescinded the contract,- and the plaintiff "was entitled to récover the money paid,- and 'interest.
    ' Thedefendant’s counsel contended that the spéciál-agree'ment-was still in -fofce, -ándnnpérformed by the; plaintiff.
    The judge decided that the evidence-did-hOt'ShoW that the contract Was rescinded," and on that ground, the plaintiff was not entitled to recover ; that the plaintiff should ! have tendered" *'the whole 'money due, and demanded a deed.
    He held that- the -mtihey-Was" to' 'be paid before the Con’vey- ‘ anee that it" should haVe'be’én tendered,' and a deed demanded and refused, or that the defendant- should be" shown ■ Otherwise in default.
    The plaintiff- excepted. Verdict for the1 defendant..
    P. Gridly now moved for. a new trial.
    He’ insisted" that the acts and declarations of the defendant 'amounted'toa rescinding of the contract on his part, Or to'&n- asséút' that the contract should be mutually abandoned -by both parties.
    Ordinarily, the plaintiff, in a case like this, must show-a tender of the whole money, and perhaps the demand of a deed; but not when the defendant' rescinds absolutely. This excuses the tender; and so when he assénts to a mutual rescinding. (20 John. 27. 1 T. R. 133. 1 Caines, 47. 1 Bro. P. C. 151. 1 Hen. & Munf. 428. Pow. on Contr. 413, 12. 14 John. 274. 5 id. 85. 3 John. Cas. 60. 3 John. Rep. 528, 2 Mass. Rep. 415. 14 John. 330. 10 id. 36. 7 Ves. 376, 7. 9 id. 250. 8 John. 476. 1 Chit. Pl. 317. 7 Cowen, 48. 7 John. 132.)
    Again ; :the defendant had forfeited 'his 'contract, and was ejected by the real"owner. ‘(11 John. 526. 2 Com. on Contr. 52. 12 John. 190. 14 id. 453, note).
    The money .'paid may be recovered -in ah action for money had andreeeived. If it be-objected-that the parties are not left in stdtu quo, the answer is that súch an objection never applies when = the defendant'rescinds "absolutely, or assents to "abandon; but is rather a reason why the Contract should, ttot'beh'éscinded in case'of mere neglect. It has no-application where the defendant elects'or-assents to a rescinding-;' otherwise ‘it would embrace all' eases-of part performance. (2 Com. on Contr. 75. 5 John. 85. 6 T. R. 606. 1 Wheat. Selw. 69, note (35.) 40 Mass. Rep. 31. 7 id. 31. 15 John. 503. 7 T. R. 181. 10 John. 36. 1 T. R. 133.)
    The judge should, át least,-have left it to the 'jury-to decide Whether the ’defendant had not rescinded, or-ass'ented to a mutual rescinding.
    
      *J. A. Collier, contra,
    relied on Fuller v. Hubbard, (6 Cowen, 13, and -the cas es- there "cited, including those "cited by Counsel.) In that case 'the mottey was paid,:and the parties "went oh. áS here Uponthe Special-"contract. The Court held that’the contract was therefore'still open, and that the plaintiff must-rely upon-that. -Here the plaintiff stopped short of his full ¡payments. He never had a right to call for any: act on the'part df the defendant. Yet he claims the whole money and interest. -Allowing such-a claim, would work the most palpable - injustice. The-defendant should be put in default before he can be called On to -'refund. (Ketchum v. Evertson, 13 John. 365.) As to the defend» ant s incapacity to convey, that is no excuse where the covenant to pay him the money is independent ; and the payment is to precede the act of conveyance. (Robb v. Montgomery, 20 John. 15.)
   Curia, per Savage, Ch. J.

The only question in this case is, whether the contract has been rescinded. It is very clear that the payment of the money and the giving of a deed were not to be simultaneous acts. The covenant to pay was independent, and the payment of the money was a condition precedent. By virtue of the covenant, the plaintiff cannot call upon the defendant to perform until he (the plaintiff) performs or tenders performance on his part. In the language of Spencer, Ch. Justice, in Hudson v. Swift, (20 John. 27,) “ Had the plaintiff brought his action on the covenant, it would have been incumbent on him to aver and prove an offer to pay the residue of the consideration. The plaintiff’s situation is not changed by suing for the money paid. He was bound to show the contract rescinded, or that he stood ready and offered to pay the balance due.” This doctrine is not denied by the plaintiff’s counsel, nor does he rely on showing an offer on his part to perform, and thereby put the defendant in fault. But he' contends, that from the acts of the defendant, or of both parties, there is evidence of a rescinding of the contract by the defendant, if not of a mutual rescinding.

What acts amount to a rescission of a contract ? The cases generally discuss the rights of the parties consequent upon *the rescission of the contract, rather than those acts . which amount to such rescinding. The case of Weaver v. Bentley, (1 Caines, 47,) was in some respects like the present. The defendant contracted to procure for the plaintiff the title to a certain lot. The defendant did not pre- ■ tend to have the title in that case, nor in this. In that' case he failed to fulfil his contract after a compliance by the plaintiff. In this respect the cases differ. The plaintiff here has not fulfilled his contract; of course, on that » • ground, the defendant is not in default. In that case, this court said that the defendant having failed to perform on his part, the plaintiff had his election either to proceed on the covenant, and recover damages, or to disaffirm the contract, and, in assumpsit, to recover back what he had paid on a consideration which had failed. In that case, the court put either action upon the same evidence. The failure to perform the contract is there considered as the evidence of the rescinding; or rather failure by the defendant to perform enables the plaintiff to treat the contract either as valid, or as rescinded and at an end. The parties may mutually agree to rescind or disannul a contract previously made, or their acts may be construed into such a tacit agreement where nothing has been done in affirmance of the contract, but in disaffirmance of it for a long time, as in Lady Lanesborough’s case, (cited Pow. on Contr. 413,) where a contract had been made between landlord and tenants which had not been acted under for 25 years ; but the former relationship had existed between them as if no such contract had been made, and in direct contradiction to it. Such acts were held to amount to a waiver of the contract. But unless there is an agreement express or implied to rescind, the party claiming that the contract is rescinded must support that claim upon the fact of a violation of the contract by the other party. In the case of Ballard v. Walker (3 John. Cas. 60,) where an agreement was entered into, to convey lands on certain terms, on which nothing was done for four years, the court presumed the contract rescinded.

In the case of Gillet v. Maynard, (5 John. 87,) there had been a parol contract to purchase land. The purchaser made some payments, and took possession. The administrator *of the .purchaser offered to pay the balance, and demanded a deed, which the defendant refused, but took possession and offered the premises for sale. The court say the conduct of the defendant can be viewed in no other light than as a relinquishment of the contract. These acts were inconsistent with a claim to. have the contract ' ‘ completed. A

The case of Judson v. Wass, (11 John v. 525,) was an action by the vendor against the vendee. By the agree ment,. the plaintiff stipulated to execute a warranty deed subject; only to quit rents. The premises were covered by a mortgage. The court held, the plaintiff could npt recover because he could not, perform on his part, as his agreement was to convey an indefeasible title, which he was unable to do,.and therefore the defendant was not bound to pay.

The. case of Tucker v. Woods, (12 John. 190,) was decided; on the same principle.

The case of Ketchem v. Evertson,(13 John. 363,)decides, that when, a party engages to execute a deed, his covenant is satisfied .by executing a quit-claim., In that case, Spencer, justice, also says, it may be asserted with confidence, that, a party who has advanced money, or done an act in. part, performance of an. agreement, and then stops short, and refuses to proceed to the ultimate conclusion of. the agreement,, the other party being, ready and willing to proceed and fulfil all his, stipulatiqns according to the contract,, has never been, suffered to recover for what has thus been advanced, or. done.

I forbear fhe.citation of more cases. I have found none of a recovery, where, the party wishing to consider the. contract rescinded,.has not shown a,breach of the contract on the. other side, or what was equal to it.. The,only ground on which- the. defendant, in this case has violated his contract, so. as; to justify the plaintiff in considering it rescinded, is assumed to be, that he took possession,, saying the contract had run out., By this expression, I understand he claimed that by the contract he had. a right to the possession, the, plaintiff having as. he. supposed, forfeited all claim, to, the. land.. If this was his meaning, his acts were supposed by him to be, in. affirmance of the contract, and not in violation of it...

*It is. true, that the defendant was at no. time in a situation to execute a, conveyance, as he had not the title. When the contract was entered' into, the plaintiff knevt that the defendant had. no title; and. i~ depended partly on the plaintiff's fulfilling hi~ cQp~act~ whether the defendant could. procure a title, and; thus. fulfil. his.~ I., apprehend. that fact di4 nqt. excuse t~e plaintiff froni. offering toç perform on his p~. The paym~t ofthe money wa~ a~ondition precedent tq the execu~n of~a d~ed; ~nd. before the plaintiff can, compl~ely put the dç~ei auti~defa~ilt,)~ si~l~1 show a readi~ies~ and an. offer tp p~rforrn on hj~part. Had this bee4 dqne, th~ defendant might, f~or aught w~ can say, have procured. a titJ~ from Mr. Clapp, who, says he was always ready to give one on payment of the amount due.

(Robb u. Montgomery, 20 John. 20.)

In the case of Weaver v. Bentley, the court say the plaintiff has his election either to prosecute on the covenant, or to consider the coyenant as rescinded, and recover back the money paid.. Suppose we test this case by the rule in that; could the plaintiff maintain an. aption on the covenant 1 I apprehend not. On the contrary, according to. the case of Robb.u. Montgomery, the, defendant might have maintained an action upon the coyenant. The. plaintiff therefore was in, default himself and not the defendant.

The motion for- a new trial must be denied.

New trial denied. 
      
       Lutweller v. Linnell, 12 Barb. 515, 516. Connelly v. Pierce, .7, Wen. 131. Hacket v. Huson, 3 id. 250. Fuller v. Hubbard, 6 Cow. 13. Foot v. West, l.Denio, 546.
     