after the contract was made, it was held that such failure gave rise to a conclusive presumption, as against the plaintiff, of his assent to a rescission of the contract, and authorized defendant to act on that presumption.5

§ 528. Acts and Conduct Constituting Rescission.-The rescission of a contract by mutual consent does not require a formal agreement or release, but may result from any act or any course of conduct of the parties which clearly indicates their mutual understanding that the contract is abrogated or terminated, or from the acquiescence of one party in its explicit repudiation by the other. Thus, in the case of a contract for the sale of land, if the vendor is unable to make title at the stipulated time, and the vendee has tendered performance, the latter will be justified in treating the contract as rescinded, the consent of the vendor being presumed from his delinquency and inability to perform. So, where the vendee is in default as to payment, and the vendor is in default because he cannot give a good title, the demanding of possession by the vendor and the surrendering of possession by the vendee amount to a rescission of the contract.68 Similarly, if the vendor takes from the vendee an assignment, release, or other transfer of the latter's interest under the contract of sale, it effects a dissolution of the contract, and the same result may follow from the fact of the vendee's abandoning possession of the property and making no further claim to it and the vendor's resuming and retaining dominion and control over

69

85 Mowry v. Kirk, 19 Ohio St. 375.

66 Hartnett v. Baker, 4 Pennewill (Del.) 431, 56 Atl. 672; Boyden v. Hill, 198 Mass. 477, 85 N. E. 413; Creamery Package Mfg. Co. v. Sharples Co., 98 Mo. App. 207, 71 S. W. 1068; Herpolsheimer v. Christopher, 76 Neb. 352, 107 N. W. 382, 111 N. W. 359, 9 L. R. A. (N. S.) 1127, 14 Ann. Cas. 399; Burns v. McFarland, 146 N. C. 382, 59 S. E. 1011; Kelly v. Short (Tex. Civ. App.) 75 S. W. 877; Marsh v. Despard, 56 W. Va. 132, 49 S. E. 24.

67 Lewis v. White, 16 Ohio St. 444; Messer Real Estate & Ins. Co. v. Ruff, 185 Ala. 236, 64 South, 51.

68 Prentice v. Erskine, 164 Cal. 446, 129 Pac. 585.

69 Sizemore v. Morrow, 28 N. C. 54; Ives v. Bank of Lansingburgh, 12 Mich. 361; Purviance v. Lemmon, 16 Serg. & R. (Pa.) 292; Fullager v. Reville, 3 Hun (N. Y.) 600.

it, at least after the lapse of a considerable period of time.7° And in equity, the mere surrender of a written contract of sale, followed by acts inconsistent with its continuance in force, may amount to a rescission of it." So, where the vendee destroys the unrecorded deed, and delivers possession of the property to the vendor, with a view to escaping liability on the purchase-money notes, the consent of the vendor to a rescission of the sale will be presumed as against any subsequent attempt of the vendee to claim under the deed.72 But this is not so where the deed is destroyed without intention to relinquish any rights under the contract, but for a different purpose," and the mere fact that a vendee neither consented nor objected while a third person, under the direction of the vendor, destroyed the written contract, is insufficient to divest him of his equity in the property, especially where there is some evidence that the parties had entered into a parol modification of the contract. It is also held that where an intending purchaser of property withdraws the money which he has deposited under the contract, the seller may treat the contract as abandoned." And a vendor will be held to have waived the sale by accepting the vendee as a tenant and receiving rent from him," but not by leasing the land to a third person, though the lease runs beyond the time for delivering possession under the contract of sale, where the lessee takes subject to the sale.""

74

Where a sale is made of goods, and they are delivered,

70 Staley v. Stone, 41 Tex. Civ. App. 299, 92 S. W. 1017. But the mere fact that the vendees in a contract of sale, who were entitled to the possession of the land for the purpose of taking minerals therefrom, made no resistance to the vendor, who demanded possession by reason of an alleged default on their part in making a payment, does not justify a conclusion that they had abandoned their contract. Leach v. Rowley, 138 Cal. 709, 72 Pac. 403.

71 Crane v. Decamp, 21 N. J. Eq. 414; Lowther Oil Co. v. MillerSibley Oil Co., 53 W. Va. 501, 44 S. E. 433, 97 Am. St. Rep. 1027. 72 Bane v. Sutton, 3 Penny. (Pa.) 199.

73 Brock v. Pearson, 87 Cal. 581, 25 Pac. 963.

74 Boone v. Drake, 109 N. C. 79, 13 S. E. 724.

75 Dobson v. Zimmerman, 55 Tex. Civ. App. 391, 118 S. W. 236.

76 Bryan v. Read, 21 N. C. 78.

77 Hunt v. Siemers, 22 Tex. Civ. App. 94, 53 S. W. 387.

and an agreement is afterwards made to rescind the contract, it is not completely rescinded until the goods have been delivered back to the seller.78 But if an order is given for goods, and, before any shipment is made, the purchaser sends a letter specifying goods of a different kind, and the seller merely replies that the order will be filled at a certain time, it is a rescission or modification of the original contract, so that the purchaser may refuse to accept goods not conforming to his second order." And the same rule was applied in a case where the purchaser refused to pay the freight on a shipment of goods, as he had originally agreed to do, and was then told that if he would not pay the freight he would have to give a certain higher price for the goods, and he received and used the goods. It was held that he had repudiated the first contract and had elected to take the property at the price fixed by the seller.80 Where the purchaser of personal property refuses to accept a delivery at the stipulated time, and thereupon the vendor sells the property to a third person, it is held that this does not by itself effect a rescission of the contract in such sense as to entitle the defaulting purchaser to a return of such payments as he may have made or release him from the vendor's claim for damages for his breach of the contract.81 But when the purchaser has given notice of his rescission of the contract of sale, the vendor may accept it, and will be held to have done so where he sells the property to a third person for an increased price without reserving any option for the benefit of the original vendee.s2 But the mere unsupported circumstance that one of several parties contracting to sell land, without the knowledge or authority of the others, and after the death of another of the parties, undertook to rent the land, cannot be regarded as evi

78 Quincy v. Tilton, 5 Greenl. (Me.) 277; Shoemaker v. Buffalo Steam Roller Co., 83 Misc. Rep. 162, 144 N. Y. Supp. 721.

79 John A. Roebling's Sons Co. v. Washington Alaska Bank, 56 Wash. 102, 105 Pac. 174.

80 Patten v. Hood, 40 Me. 457.

81 Ashbrook v. Hite, 9 Ohio St. 357, 75 Am. Dec. 468; Mayberry v. Lilly Mill Co., 112 Tenn. 564, 85 S. W. 401.

82 Gwin v. Calegaris, 139 Cal. 384, 73 Pac. 851. And see In re Fink, 157 Pa. 292, 27 Atl. 724.

dence of a mutual rescission of the contract in the lifetime of such other party.88 It should also be remembered that there may be an effective rescission by the tacit relinquishment of rights or claims. Thus, where two joint owners of land contracted with each other that neither should sell without giving the other the refusal, and a sale was made by one of a portion of the land, with the consent of the other, and nothing was said as to the future exercise of the right of pre-emption, it was held that such right must be deemed to have been abandoned.84 In another case, plaintiff and defendants entered into a written contract by which the former was to establish a newspaper and the latter were to furnish him with a certain number of paid-up subscribers within a specified time, but defendants failed to carry out their agreement, and plaintiff sold out the enterprise. It was held that both parties had abandoned the contract, and neither could maintain an action on it.

85

§ 529. Same; Offer and Acceptance.-A contract is effectually rescinded where one of the parties makes a proposal, offer, or request to that effect, and it is unequivocally accepted by the other, or where one of the parties. states that it has become impossible for him to complete his part of the contract, on account of an accident, and the other acquiesces in the situation and excuses him from further performance,87 or where one of the parties to an executory contract, after part performance, unequivocally refuses to perform further, on the ground of fraud, and his refusal is accepted by the other party as conclusive.88 But a mere offer or request to rescind a contract has no effect whatever upon the contract itself or the rights and obligations of the parties under it unless and until it is

88 Key v. Dent, 6 Md. 142.

84 Weisman v. Smith, 59 N. C. 124. 85 Jones v. Mial, 79 N. C. 164. 86 Parmly v. Buckley, 103 Ill. 115; Rep. 1033, 83 S. W. 112; Flynn v. Supp. 235.

Pac, 171.

Carter v. Hibbard, 26 Ky. Law Ledger, 48 Hun, 465, 1 N. Y. And see Schwab Safe & Lock Co. v. Snow (Utah) 152

87 West Coast Shingle Co. v. Markham Shingle Co., 50 Wash. 681, 97 Pac. 801.

88 Cunningham v. Pettigrew, 169 Fed. 335, 94 C. C. A. 457.

89

90

accepted. Thus, where the defendant, intending to put an end to a contract with the plaintiff, proposed to pay a certain sum for a release from the contract, but the plaintiff brought suit for a breach of the contract, it was held that defendant's proposition was merely an offer of a compromise, which was not binding because not accepted. So, a contract made by correspondence to furnish a certain number of car loads of glass is not canceled or changed by a letter afterwards written by the seller, stating that he will send the last car load on different terms from those specified in the contract, where the purchaser answered by telegram merely urging that the glass be sent at once, and afterwards by letter in which he referred to the original contract without consenting to any change in its terms.o1 In another case the contract bound the defendant to furnish a specified kind of lumber within a reasonable time. He failed to do so, and wrote to the plaintiff, excusing his failure and advising the plaintiff to look elsewhere for the lumber. Plaintiff replied by stating that he had been depending on defendant and would ask him to use every exertion possible to furnish the lumber at an early date. It was held that the plaintiff had not rescinded the contract."2

It should also be noted that an application or offer to rescind a contract, which is not accepted, does not imply any breach or abandonment of the contract by the party making the offer, nor is it to be taken as a waiver of his right to enforce the contract as made.93 And further, an offer or proposal for rescission must be accepted before there is such a material change in the situation of the parties that the offer would not then have been made. Thus,

89 Chadbourne v. Davis, 9 Colo. 581, 13 Pac. 721; A. Westman Mercantile Co. v. Park, 2 Colo. App. 545, 31 Pac. 945; Whiting Foundry Equipment Co. v. Hirsch, 121 Ill. App. 373; Flynn v. Finch, 137 Iowa, 378, 114 N. W. 1058; Watson v. E. E. Naugle Tie Co., 159 Mich. 174, 123 N. W. 589; Fripp v. Fripp, Rice, Eq. (S. C.) 84; Parks v. Elmore, 59 Wash. 584, 110 Pac. 381; O'Donnell v. Brand, 85 Wis. 97, 55 N. W. 154.

90 Union Locomotive Exp. Co. v. Erie Ry. Co., 37 N. J. Law, 23. 91 Holton v. McPike, 27 Kan. 286.

92 Crane v. Barron, 115 App. Div. 196, 100 N. Y. Supp. 937.

93 Picot v. Douglass, 46 Mo. 497; Wheaton v. Collins (N. J. Ch.) 84 Atl. 271.