
    [Chambersburg,
    October 17, 1826.]
    POWER and another against NORTH.
    IN ERROR.
    In October, 1815, 5V. contracted with P. and E., to convey to them three tracts of land in July, 1818, and give them immediate possession, in consideration whereof, P. and E. agreed to pay one thousand dollars, in three annual payments, of three hundred and thirty-three dollars and thirty-three cents each : it was further agreed, that if P. and E. did not pay the monies at the times agreed upon, the agreement should be void, and P. and E. should deliver up the, possession to 5V. and pay rent for the time they occupied. P. and E. paid the first instalment, but no more: they afterwards abandoned the land, and 5V. took possession. Held, that 5V. was not bound to refund the instalment he had received, reserving a reasonable rent.
    Writ of error to the Court of Common Pleas of Cumberland county.
    The plaintiffs in error, William Power, jr., and W. M. Elliott, late trading under the firm of Power and Elliott, were plaintiffs below, and brought this action of assumpsit against Caleb North, the defendant in error and defendant below, to recover back a sum of money paid by them to the defendant, under an article of agreement made between the parties on the 28th of October, 1815, which witnessed that the said Caleb North, for and in consideration of the monies hereinafter agreed to be paid, kept, and performed by the said Power and Elliott, he, the said Caleb North, for himself, his heirs, executors, and administrators, by these presents, doth agree to make out a deed of conveyance, on or before the first day of July, 1818, and by good and sufficient conveyance in law, convey and assure unto the said Power and Elliott, or their heirs or assigns, all his right, title, claim, interest, and demand, of and to three certain surveys or tracts of land, adjoining and contiguous to the Mount Vernon Forge Tract aforesaid: [Here follows a description of three tracts of land, situate in Greenwood township, Cumberland county:] containing, in Ihe whole, about three hundred acres, be they more or less, which the said North is to give the said Power and Elliott, and the said North is to give clear patents for all the said tracts to the said Power and Elliott, their heir’s and assigns, at the same time he gives his deed of conveyance; th'e said North is to give the said Power and Elliott immediate possession of the aforesaid ti’acts of land, subject to the lease of Daniel Young, deceased, and Peter Grub, and the claim of possession of William Fowler. In consideration whereof, the said Poiver and Elliott, their heirs, executors, and administrators, áre to pay unto the said Caleb North, his heirs, executors, administrators, or assigns, the sum of one thousand dollars, in three equal annual payments; that is to say, three hundred and thirty-three dollars and thirty-three cents, on the first day of July next ensuing the date hereof; and thi’ee hundred and thirty-three dollars and thirty-three cents, on the first day of July, in the year of our Loi’d 1817; and three hundred and thirty-three dollars and thirty-thi’ee cents, on the first day of July, 1818;—when the said conveyance is to be given, together with the patents and other title papers in the possession of the said North. It is further agreed between the said parties, that if the said Power and Elliott, their heirs or assigns, do not pay the said North, or his heirs or assigns, the money at the times above-mentioned for payment thereof, then this bai’gain and sale to be void and of none effect, and the said Power and Elliott, their heirs, administrators, and assigns, shall, at the request of the said North, his heirs, executors, administrators, and assigns, yield and deliver up peaceable possession of the said premises to the said North, his heirs, executors, or administi’ators, as their property, as if this agreement had never been made, and pay a reasonable rent for the time they occupy the same. And, for the true performance of this agreement, the said parties bind themselves to the other, their heirs or assigns, in the sum of five hundred dollars, as witness our hands and seals, this day and year fix’st above written.
    In September, 1816, the plaintiffs paid the defendant thi’ee hundred and nineteen dollars and eighty-one cents, for which the defendant gave them his receipt indorsed on the above agreement, expressing it.to be “ on- the within agreement.” They paid no farther instalment, but abandoned the lands, which were taken possession of by the defendant, North.
    
    The plaintiffs requested the court below to charge the jury—
    1. That, by the articles of agreement, dated' the 28th day of October, 1815, between Power and Elliott and the defendant, in case of a failure to pay the whole amount, or any part of the purchase money therein expressed, according to the provision of the said article, by the said Power and Elliott, the said article of agreement became void, and in that event the defendant became entitled to the possession of the laud therein conveyed, and the plaintiffs became and are now entitled to recover from the defendant so much of the purchase money as was paid on the contract between the parties.
    2. That if the jury believe that the said defendant took possession of the land after a failure on the part of Power and Elliott, to pay the purchase money, according to the terms of the said agreement, that then the said defendant has embraced the remedy provided for him by the said contract, that the contract is rescinded, and the plaintiffs are entitled to recover the amount of the purchase money paid on the said agreement by them,, with interest, deducting therefrom a reasonable rent for the occupation of the said land, according to the agreement contained in the said article.
    The court below charged as follows':—
    “The facts in thjs case are not disputed; the question is one of law, and arises on the agreement between the parties. The agreement was in force when the money was paid by the plaintiffs to the defendant. The payment was made in pursuance of the agreement, and according to its terms and provisions. The defendant, therefore, received it in good faith, and if there is no agreement to refund, nor failure on North’s part, so as to render a return equitable, he could hold and retain it in good faith; and if so, the law would raise no promise to refund, and it is not pretended there is any express promise.”
    “ The bargain and sale was to become void after the default in payment; that is, it was to be prospectively void. By the omission to pay, the plaintiffs forfeited their right to the contract; but no intimation is given that the defendant should, in any event, refund. Their whole contract was in writing; every thing was stipulated in the agreement relative to the.covenants of the parties. Nothing was left to implication; and if there is' nothing in the agreement indicating an understanding that the defendant should refund, the law can raise none by implication. Where parties make a contract, and monies are paid under it, if the consideration fail, or the contract is rescinded by stipulation, so as to be void ab initio, then monies so paid, may be recovered back in assumpsit for money had and received. But when the agreement is rescinded by the default of the payer, and the payee can conscientiously retain, nothing but his express agreement to refund can compel him to do it.”
    ££Th¿ agreement to pay rent was to provide for the event of nothing being paid by the purchasers, under the agreement. From the whole agreement, I would infer it not to have been within the intention of the parties, that under the circumstances in evidence, the defendant should refund. Several other points are put to the court for the instruction of the jury, but, as we think the law is against the plaintiffs’ recovery, it is unnecessary to go through them.” .
    To this charge the plaintiffs excepted. The jury found a verdict for the defendant, and judgment was rendered accordingly.
    
      Penrose, for the plaintiff in error.
    The opinion of the court was, that we were not entitled to recover, and this is the point of all our exceptions. By the express terms of the articles, non payment of money was to be a rescinding, and either might rescind; in which case the article was to become ipso facto void, which leaves the parties in their former situation. North took possession of the land after it was abandoned by Power and Elliott. This is a confirmation of their rescinding the contract. He, therefore, cannot conscientiously retain the money paid on the foot of the agreement. In Gillet v. Maynard, 5 Johns. 86, the principle is established. He also cited Weaver v. Bentley, 1 Caines Rep. 47. It was a question of fact, whether the contract was rescinded, and as such, ought to have been left to the jury.
    
      Carol hers, contra.
    The intention of the parties was, that every thing done under the contract should stand, and that it could be rescinded only prospectively. The right to rescind was introduced exclusively for the benefit of the vendor. He had his election to regain the possession, if the vendees should be unable to complete the contract. This related to the first payment: as soon as that was made, all power to rescind on either side was at an end. Chancery, therefore, would execute the contract, unless the contract was rescinded by the agreement of both; and the question is, whether they have so rescinded. No act of this character existed, but the taking of possession by the vendor. The vendees abandoned the possession; the vendor resumed it.
   The opinion of the court, (Tilghman, C. J. taking no part in the judgment, having been sick and absent at the time of the argument,) was delivered by - ■

Gibson, J.

It is a fair construction of the articles to limit the power to rescind by the act of one party, to the vendor alone. It surely never was intended to permit the vendees to defeat the object of the bargain, by omitting to do the very thing which they had covenanted to do. On the contrary,' it is evident from the scope of the contract, that the provision for rescinding was introduced for the exclusive benefit of the vendor, in ease the vendees should be unable tof carry the contract into effect. And the power was to be exercised only before payment of any part of the purchase money. We cannot suppose the parties had in view to permit the vendor to put an end to the purchase after it should be completed .by payment of all but the last shilling; yet, to this extent might the power be carried, if the exercise of it were- permitted under any circumstances beyond the point which I have indicated. The covenant to restore the possession, in case the purchase should not be completed, is altogether consistent with this construction, for by the terms of the agreement the vendees were to go into possession before the time appointed for payment of any part of the purchase money. But, notwithstanding that the time for rescinding by the act of one of the parties had gone by, the contract might, without any provision for it in the articles, undoubtedly be dissolved by the agreement of bqth; and in that event a right to have the purchase money rescinded in the absence, of a stipulation to retain it, would result-as much of course, as if the contract were dissolved by one of the parties, under a power specially reserved. As no stipulation for retention was pretended, the true question, therefore, was, whether the contract still existed. The vendees, after having paid part of the purchase money, had suffered losses which induced them to abandon their business and remove from the part of the country in which' the premises are situated, and the vendor quietly resumed the possession which was found to be vacant, but did no act which can be considered as inconsistent witli a continuance of the equitable ownership of the vendees. Taking possession is, at most, but an equivocal act; and the burden of proving it to the satisfaction of the jury, to have been done with an intent to rescind, lay on the plaintiffs, without which they would not make out a case. Even a recovery in ejectment for non payment of the purchase money, has been considered as not necessarily dissolving the contract. Youst v. Martin, 3 Serg. & Rawle, 423. The court, therefore, were right in their conclusion that the plaintiffs had failed. But it is now contended that the inlént with which the possession was resumed, ought to have been left to the jury. Had the counsel treated the intent of the vendor as matter of fact in the court below, there would be much force in his objection; but the decision of the point was submitted by him as matter of law; and in that aspect it was, undoubtedly, rightly decided. He prayed the court to direct the jury that if the vendor took possession, after a failure by the vendees to pay the purchase money, he had embraced the remedy provided for him; and that the contract was ipso facto rescinded. In this he was undoubtedly wrong, the act of taking possession being, as I have said, equivocal. And if he had thought that the actual intent of the vendor could be called in aid of his case, it was his business to submit it as a matter of fact to the jury, instead of which, he submitted it as matter of law to the court; and’ it was held in M‘Ilvaine v. M‘Ilvaine, 6 Serg. & Rawle, 559, that if a counsel ask a question of the court, which is answered against him, he cannot assign for error, that the court charged on matter of fact. The assignment of error, therefore, is not sustained.

Judgment affirmed.  