delivered the opinion of the court.
The contract upon which the special counts are founded is drawn in a very clumsy and imperfect manner ; but its meaning may be easily understood ; and it is evident that the counsel who drew those counts did understand what must have been the fair intention of the parties. The essence of the agreement was that for a certain sum of money, (of which $24 were paid to the defendant at the date of the agreement, in part,) payable by several annual instalments, for which good security was to be given, the defendant agreed to release to the plaintiff all his right and title to certain real property in Portland, at the time of receiving such good security. The obligation of the defendant to make the release was conditional ; and the condition was to be previously performed by the plaintiff. So the bargain was understood ; and accordingly, in each of the special counts, there is an averment that such condition had been duly performed, or that all things which it was incumbent on the plaintiff to perform, had been performed. The case finds that not one of the instalments was paid or tendered in season, and it is not pro-*457tender! that any kind of security was over given or tendered. The question as to a waiver of objection was properly left to the jury, and they have decided it against the plaintiff. On these facts, and on legal principles, it is very clear that no action can be maintained on the special contract.
The only remaining question is, whether, on the general counts, the plaintiff has a right to recover back the sums he paid towards ¿he performance of his agreement. On this point the case finds that the defendant never consented to waive or rescind the special con. tract, and was not the cause of its nonperformance ; or, in other words, the jury by their verdict, under the instruction they received, have so settled those facts. The failure in the article of performance, then, was owing to the plaintiff’s own fault, negligence or inattention, and we are to decide whether the law, in such circumstances, will furnish him an indemnity agaiust the consequences of this fault, negligence or inattention. It is a proverbial principie that a man is not permitted, in o court of justice, to take advantage of his own wrong or neglect. The principle is founded in the highest reason. If a man, after he has made a fair contract, and partially fulfilled it, may, without the consent, or any fault, on the part of him with whom he has contracted, rescind the agreement, excuse himself at once from all further concern about it, and recover back whatever he has paid, he may speculate and disappoint and injure his neighbor whenever his interest or his passions may dictate ; and thus triumph over him in security and enjoy, hirnself, a complete indemnity. Justice will not sanction such a proceeding. The cases in which one of the parties to a contract may lawfully disaffirm and rescind it, are those in which the other party has been in fault, or where, by the terms of the contract, a right to rescind it is reserved. But in this case we need not depend on mere reasoning, because it has been decided, in numerous instances, that such a claim as the present cannot be sustained on legal principles. The defendant never made an express promise to repay the mousy in question; and why should the law imply one, in íaw of o man who has violated his contract, on the part of one who stands fair and innocent ? If a man gives Mss neighbor $100, he cannot by law recover it back ; uo promise *458of repayment is implied. And when the plaintiff concluded not to perform his contract, but abandon it, we must consider him as waiving all claim to what he had paid, as much as if he had given it without any pretence of consideration received.
It is a general rule that when the parties have made an express contract, the law will not imply one. Howes v. Baker 3 Johns 506, 511. Worthen v. Stevens 4 Mass. 448, 449. Whiting v. Sullivan 7 Mass. 107. Jewett & als. v. The County of Somerset 1 Greenl. 125. This is the unquestionable rule where the express contract remains in force, and not rescinded by any act of the parties. In the case at bar the parties had not rescinded the express contract ; the plaintiff had merely broken his part of it; but the defendant could, if he had so inclined, have maintained an action upon it, against the plaintiff,for his violation of it, in not paying the several sums therein named, according to the terms of it. Notwithstanding there has been some variance in the decisions on the subject now under examination, as appears at large in 1 Dane's Abr. ch. 9, art. 22, & seg. still the true principle, when extracted from all the cases, appears to be, that the plaintiff must go on his special contract, while it remains in force, not varied by mutual consent. See the cases as collected by him, and 2 Phil. Ev. 83. The principles of law in relation to this point have recently undergone a careful examination in the case of Stark v. Parker 2 Pick. 267. In that case the plaintiff agreed to work with the defendant for one year, for the sum of $ 120 ; worked with him a part of the year, and then left his service, without any fault on the part of the defendant. The court decided that the contract was entire, and so no action could be maintained upon that; and they also decided that he could not renounce the express agreement, and recover upon a quantum meruit. In that case the plaintiff had benefitted the defendant, to the amount of about $27, by his labour, for which he could not and did not recover any thing. In the present case the plaintiff has benefitted the defendant to the amount of $34, by so much of his money ; but the principle is the same in both cases ; the defendant made no promise, nor does the law implyone from him to the plaintiff, in either case; in both the loss of the plaintiff is the consequence *459of bis own voluntary act, not assented to by tlie defendant, nor attributable to any fault or neglect on bis part. We are of opinion 1 hat the instructions of the judge were correct, and that there must be
Judgment on the verdict.