erty sold by way of barter or exchange, where he retained a substantial part of the consideration received. If he intended to revoke the contract by reason of the defendant's breach and seek to recover the value of the property delivered to the defendant on a quantum valebat, it was his duty to put the defendant in the condition in which he was before the bargain by first returning to him the consideration he had received. His failure to do this deprives him of the right to sue except for breach of the contract. Kimball v. Cunningham, 4 Mass. 502, 3 Am. Dec. 230; Bartlett v. Drake, 100 Mass. 174, 176, 97 Am. Dec. 92, 1 Am. Rep. 101; Marston v. Singapore Rattan Co., 163 Mass. 296, 39 N. E. 1113; Croft v. Wilbur, 7 Allen 248; De Montague v. Bacharach, 181 Mass. 256, 63 N. E. 435; O'Shea v. Vaughn, 201 Mass. 412, 420, 424, 87 N. E. 616. The plaintiff relies upon Miller v. Roberts, 169 Mass. 134-146, 47 N. E. 585, but that case is plainly distinguishable for in the case at bar no question of the statute of frauds was raised by the pleadings or at the trial, and the defendant appears to have contended that he had fully performed his part of the contract, and the controversy related chiefly to the terms of the contract.

Some reliance is placed upon the offer of the plaintiff during the trial to return the consideration. But the authorities just cited show that the general rule is that the offer to return the consideration must be made in a case of this sort before action is brought. A return may be made after the institution of the action in instances where the thing returned is as between the parties a mere promise or not property, as for instance a check or note of one of the parties. Morse v. Woodworth, 155 Mass. 233, 249, 27 N. E. 1010, 29 N. E. 525; Illustrated Card & Novelty Co. v. Dolan, 208 Mass. 53, 55, 94 N. E. 299. This is not that exceptional kind of case, but falls within the general rule above stated.

The question as to the validity of the deed of the Connecticut property becomes immaterial.

Exceptions overruled.1

'In Summerall v. Graham, 62 Ga. 729 (1879), plaintiff, vendee under a land contract, paid part of the purchase price and went into possession. Defendant vendor failed to make title. Plaintiff sued to recover back the purchase price. Bleckley, J., said: "He [plaintiff] still retains that possession. He has not surrendered or offered to surrender it, nor has he been evicted. * * * Restitution before absolution is as sound in law as in theology; and that doctrine prevents an ex parte rescission by the plaintiff, without restoring the defendant to his original situation."

WHERE PLAINTIFF HAS RECEIVED MONEY. Where it is money that plaintiff has received, the plaintiff may be allowed to recover the value of benefits conferred on defendant, less the amount of money received by the plaintiff. Wellston Coal Co. v. Franklin Paper Co., reported herein at p. 173.

HUNT v. SILK.

5 EAST (K. B.) 449-1804.

IN assumpsit for money had and received. On the 31st of August, 1802, an agreement of that date was made between the parties, whereby the defendant, in consideration of 10l. to be paid at the time of executing the lease after mentioned, and for other considerations therein stated, agreed that within ten days from the date thereof he would grant to the plaintiff a lease of a certain dwellinghouse for nineteen years (determinable by the plaintiff in five, ten, or fifteen years) from the 29th of September then next (but possession to be immediately given to the plaintiff), at the yearly rent of 631. And the defendant also agreed at his own expense to make certain alterations in the premises, and that the premises, fixtures, and things should at the time of executing the lease be put in complete repair. And the plaintiff, in consideration of the aforesaid, agreed to accept the lease at the rent and in manner aforesaid, and to execute a counterpart, and pay the rent. The plaintiff took immediate possession of the premises under the agreement, and paid the 10l. at the same time, in confidence that the alterations and repairs stipulated for would be done within the ten days; but that period and some days after having elapsed, and nothing being done, notwithstanding several applications to the defendant to perform the work, the plaintiff quitted the house, giving the defendant notice. of his having rescinded the agreement in consequence of the defendant's default, and brought this action to recover back the money he had paid. Lord ELLENBOROUGH, however, thought that the plaintiff was too late to rescind the contract, and that his only remedy was on the special agreement, and therefore directed a non-suit. Which

Reader now moved to set aside and to have a new trial, on the authority of Giles v. Edwards, 7 T. R. 181.

Lord ELLENBOROUGH, C. J.-Without questioning the authority of the case cited, which I admit to have been properly decided, there is this difference between that and the present; that there by the terms of the agreement the money was to be paid antecedent to the cording and delivery of the wood, and here it was not to be paid till the repairs were done and the lease executed. The plaintiff there had no opportunity by the terms of the contract of making his stand, to see whether the agreement were performed by the other party before he paid his money, which the plaintiff in this case had; but instead of making his stand, as he might have done, on the defendant's non-performance of what he had undertaken to do, he waived his right, and voluntarily paid the money; giving the defendant credit for his future performance of the contract, and afterward continued in possession notwithstanding the defendant's default. Now where a contract is to be rescinded at all, it must be rescinded

in toto, and the parties put in statu quo. But here was an intermediate occupation, a part execution of the agreement, which was incapable of being rescinded. If the plaintiff might occupy the premises two days beyond the time when the repairs were to have been done and the lease executed, and yet rescind the contract, why might he not rescind it after a twelvemonth on the same account? This objection cannot be gotten rid of; the parties cannot be put in statu quo.1

GROSE, J., of the same opinion.

LAWRENCE, J.-In the case referred to, where the contract was rescinded, both parties were put in the same situation they were in before. For the defendant must at any rate have corded his wood before it was sold. But that cannot be done here where the plaintiff has had an intermediate occupation of the premises under the agreement. If indeed the 10l. had been paid specifically for the repairs, and they had not been done within the time specified, on which the plaintiff had thrown up the premises, there might have been some ground for the plaintiff's argument that the consideration had wholly failed; but the money was paid generally on the agreement, and the plaintiff continued in possession after the ten days, which can only be referred to the agreement.

LE BLANC, J.-The plaintiff voluntarily consented to go on upon the contract after the defendant had made the default of which he now wishes to avail himself in destruction of the contract. But the parties cannot be put in the same situation they were in, because the plaintiff has had an occupation of the premises under the agreement. Rule refused.2

The expression "rescission of contract' sometimes means the annulment of the agreement for mistake or fraud or some other defect in an essential requisite. It sometimes means the extinguishment of the contract by mutual agreement. But in this connection, it signifies the right of one party to put an end to a contract on account of a substantial breach of it by the other party." Brantly, Contracts, 2d ed. § 198. Further, on the various uses of the word recission, see 7 Col. L. Rev. 123; and for a criticism of its use where defendant has broken the contract, see Lord Bowen's comment in Mersey Steel and Iron Co. v. Naylor, 9 Q. B. D. 648, 671.

In De Montague v. Bacharach, 181 Mass. 256 (1902), plaintiff claimed to have obtained the right from defendant to run a restaurant for two years in a basement, part of which was occupied by defendant's bar. After ten months defendant refused to allow him to use the basement any longer, and plaintiff sued to recover back what he had thus far paid. The court said: "The second ground on which the plaintiff seeks to keep his verdict is that, on the breach of the contract by the defendants, he was entitled to rescind the contract and recover from the defendants what he paid under it. But as was said in Handforth v. Jackson, 150 Mass. 149, 154, 22 N. E. 634, in case a plaintiff wishes to rescind, the defendant is 'entitled to have his property restored to him, not to have its value fixed by a jury'; and it is settled that a plaintiff cannot rescind a contract on the defendant committing a breach of it, without putting the defendant in statu quo. Leonard v. Morgan, 6 Gray 412; Bassett v. Percival, 5 Allen 345; Handforth v. Jackson, 150 Mass. 149, 22 N. E. 634; Marston v. Curtis, 163 Mass. 296, 302, 39 N. E. 1113; Gassett v. Glazier, 165 Mass. 473, 480, 43 N. E. 193. In the case at bar the plaintiff had enjoyed the privilege of conducting the restaurant for at least ten months. For that reason he could not put the defendants in statu quo, and therefore could not rescind the contract on the defendants committing a breach of it."

REYNOLDS v. LYNCH.

98 MINN. 58.-1906.

START, C. J.-Action in the district court of the county of St. Louis to recover $500 paid by the plaintiff to the defendant as earnest money on a contract giving the plaintiff the option to purchase certain land at the price and within the time stated in the contract. On the trial and at the close of the evidence the trial court instructed the jury to return a verdict in favor of the plaintiff for the amount claimed, and the defendant appealed from an order denying his alternative motion for judgment notwithstanding the verdict or for a new trial. On July 25, 1904, the parties hereto entered into a contract which is designated in the record as Exhibit A, whereby the defendant, in consideration of $500 then paid to him by the plaintiff, granted to the plaintiff an option for ninety days from the date thereof to purchase the land described in the complaint, aggregating some 8,000 acres, for the sum of $7,774.99. The contract provided that if the sale was concluded the $500 should apply on the purchase price. There was, however, no express provision as to the return of the $500 in case the defendant failed to perform the terms of the contract on his part. The defendant agreed as a part of the contract to deliver, at his office, in the city of Duluth, within sixty days from the date of the contract, to the plaintiff, complete abstracts of title of the land with certificates as to taxes and judgments. * * *

The next contention of the defendant is that the agreement to furnish abstracts of the title of the land was an independent covenant, a breach of which gave the plaintiff no right of rescission, his remedy for such breach being an action for damages. The question whether covenants are to be held to be dependent on or independent of each other turns upon the intention of the parties to be ascertained from the subject-matter and terms of their contract. Such intention is paramount to which, when once discovered, all technical forms of expression must yield. 3 Page on Contracts, § 1452; 11 Cyc. 1053. Applying this test to this contract it is clear that the covenant of the defendant to furnish the abstracts within sixty days was not an independent one but an essential and material part of the contract. The subject-matter of the contract was the proposed purchase of a large tract of land by the plaintiff if he so elected within ninety days. He could not intelligently exercise the option without knowing the state of the title to the land. This could only be ascertained by the examination of a large number of abstracts by a lawyer or other competent party. The manifest intention of the parties, as disclosed by their contract, was that the covenant as to furnishing the abstracts was not to be regarded as an independent one, a breach of which might be compensated by an action for damages. Nothing could be more

foreign to the intention of the parties, as disclosed by their contract, than that if the defendant failed to keep his covenant as to furnishing the abstracts the plaintiff nevertheless must either forfeit the $500 paid for the option or consummate the purchase without knowledge whether or not he was getting any title to the land, and content himself with damages for a breach of the covenant if he could establish any. Even if it be conceded that time was not of the essence of the covenant to furnish the abstracts, yet the defendant was bound to furnish them within a reasonable time so that the state of the title could be determined in time to enable the plaintiff intelligently to exercise his option.

It is further urged by the defendant that if the covenant to furnish the abstracts was not an independent one but an essential and material part of the contract, the plaintiff could not rescind because he could not restore what he had received by virtue of the contract. True it is that the plaintiff by virtue of the contract had the option to purchase the land upon the terms therein stated at any time during the ninety days. The argument urged by defendant's counsel in support of his proposition is ingeniously plausible, but it is unsound. The general rule that one who has received substantial benefits from a contract must restore them as a condition precedent to its rescission rests upon the maxim that he who seeks equity must do equity. Clearly then the rule cannot be invoked by the party whose own breach of the contract neutralized the tentative benefits received by the opposite party who cannot return them, and who cannot be adequately compensated for the breach in an action for damages. Now in this case the defendant was bound to sell the land if the plaintiff elected to purchase it within the time limited by the contract. The defendant covenanted that he would, as a condition precedent, furnish abstracts of title to enable the plaintiff intelligently to exercise his option. This condition the plaintiff failed to perform, whereby any tentative benefits received by the plaintiff were neutralized, and he rescinded the contract and demanded the repayment of the money paid for the option. But it is urged that until there was a rescission the defendant was bound by the contract and during that time he lost the right to offer the land for sale and that what he so lost cannot be restored to him. True, but if he had kept his part of the contract he would either have received the balance of the purchase price of the land or the right to retain the $500 paid for the option. Therefore if he loses anything by the rescission it is due to his failure to perform his own covenant. We hold that the plaintiff had a right to rescind the contract and sue for the amount paid by him thereon.

The last claim urged by the defendant is that the plaintiff waived his right to rescind the contract, if any he had, by an unreasonable delay in exercising the right. We have considered this claim and tested it by the record. We are of the opinion that the plaintiff exercised his right to rescind within a reasonable time after the defendant's failure and refusal to furnish proper abstracts of the title to