(dissenting)—To sustain the judgment rendered in this case the court must hold that there was a mutual rescission of the contract. That there was no’ rescission seems to me to be too plain for argument. The holding of the majority is sustained by a finding that when the Connellys told Malloy they were going to leave the place he hauled them to a neighbor’s in his own wagon and with his own team, and thereafter cared for the place and the stock that was on it. It is not made clear that he could have done other than he did. He could not restrain his vendees by force. If he had attempted to do so he would have been guilty of an assault. If he had permitted them, especially the lady, to walk down the big road he would have been rude. The farm and property, especially the live stock, had to be cared for. He did no more than prudence dictated and humanity demanded. In other words, he acted as a gentleman would, and must now pay a penalty for his politeness. This may be the law, but it does not consist with the rules of polite society.
I do not attach importance to the testimony of the Connellys that Malloy agreed that they might go to his attorneys and get their notes. It sustains rather than destroys appellant’s case. They had abandoned the place and he was willing that they should receive their notes and that he should retain the $1,000 as liquidated damages. The fact that the Connellys moved off after this conversation is a circumstance *474tending to show that, if there was a mutual rescission, it was upon the terms proposed.
The objection to the title was raised by counsel after the abandonment. It is no more than a pretense and a subterfuge and, besides, appellant had in law a reasonable time to meet the objections. The case should have been reversed and remanded with judgment for appellant in the sum of $1,000.