[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 90 Assuming that the contract of the 9th of November was rescinded by the mutual and voluntary consent of both parties, and without the fault of either, (and this is the most favorable view for the plaintiff,) the parties must be deemed to be restored by that rescission to the condition in which they stood immediately before the contract was made. (5 East, 449; Hunt v. Silh, 15 Mass. 319; Conner v. Henderson, 6 Gill John. 424.) In point of fact the rescission was occasioned by the plaintiff's breach of the contract, and was a consequence of that breach. He therefore has no claim to be placed thereby on better ground than he occupied when the contract was made. At that time the bank owed the plaintiff the sum of $1823,44, but not in so much money. It was payable in land. Speaking more exactly, the bank was bound by the agreement in writing of the 19th of October, to give the plaintiff a contract for the conveyance to him of the Chapin farm at $30 the acre, and he was bound to take that contract and apply the balance due from the bank, as above mentioned, in part payment for the farm, and to pay the residue in money. The bank, therefore, did not owe him money and he could not compel payment in money. It was an essential part of the agreement existing before and at the time when the last contract was made, that the sum now claimed by the plaintiff, in money, should be applied upon the plaintiff's purchase of the Chapin farm, and it was the defendants' undoubted right to have it so applied.
In Wilt v. Ogden, (12 John. 56,) the plaintiff declared on an agreement or promissory note, made by the defendant, to pay the plaintiff $270, in drawing plaster at so much per ton, from Ithaca to Owego, and also for goods sold and delivered. The note was given for a pair of horses sold by the plaintiff to the *Page 92 defendant. The plaintiff proved the note at the trial, but the defendant proved that he had been ready and offered to draw the plaster. The plaintiff not being able to recover on the note, offered to abandon his count thereon, and claimed to recover the value of the horses on the other counts. But the plaintiff was nonsuited, and the court say, upon the motion to set the nonsuit aside, that to allow the plaintiffs to recover back the original consideration, would be permitting them entirely to change the contract, and to recover in money when payment was to be made in the performance of services, and this too without any default on the part of the defendant.
This is in principle like the case in hand. The rescission of the contract in question by the bank was not a breach of it, but was in pursuance of a provision contained in it, and the defendants are chargeable with no violation of it whatever.
The court is nevertheless called upon by the plaintiff to change the defendants' obligation to pay in land, into a duty to pay in cash, and that against the consent and without the default of the defendant. I know of no principle on which this can be done in any form of action, either at law or in equity.
The plaintiff, in fact, paid no money on the contract of the 9th of November. The receipt of the sum now claimed was indorsed on that contract as if money had been paid. But the receipt is open to explanation; the plaintiff has explained it by his own proof. The sum which the parties had bound themselves to apply in part payment for the Chapin farm, was so applied by that receipt, but no money was parted with by the plaintiff. The plaintiff's difficulty, however, does not lie in the form of his pleadings, but in the want of merits in his case. The first count in the declaration is bad for the reason, that upon the facts set forth in it, there was no legal liability on the part of the defendant to pay the plaintiff the sum claimed, in any other mode than by allowing it upon the purchase of the Chapin farm, which the plaintiff has refused to carry into effect. The judgment of the court below upon the demurrer was therefore not erroneous. The plaintiff was rightly nonsuited.
Judgment affirmed with costs. *Page 93