Cope, J. concurring.
The question in this case arises upon a proper construction of this paper: “ For value received, we hereby cancel the annexed and within agreement, and mutually agree and discharge each other from all the covenants and agreements therein contained; and the said Winton, the purchaser, hereby surrenders possession of the within described premises to the said Spring.” It seems the contract so canceled, stipulated for the purchase and sale of land; the price to be paid was $25,000—$4,000 in cash, and the remainder at subsequent periods.
The plaintiff contends, that this agreement being canceled as above shown, the effect was, as in the ordinary case of a rescission of a contract, to put the parties in statu quo, and having paid the $4,000 in the execution of the agreement, he is entitled to recover it back. We think not. The agreement of cancellation evidently was intended to effect a complete settlement in regard to the subject ; it discharges the parties from all covenants and agreements in the original contract, and provides for a surrender of the premises. Nothing is said or done in reference to the refunding of the $4,000. If the intention was to place the parties in statu quo, and this were supposed to be effected by the use of the word cancel, as an equivalent to the word rescind, it is probable that language more unequivocal would have been employed. The latter clause of the agreement in respect to the possession would be tautological in this view; for the restoration of possession would follow from the use of the word cancel in the first line. Besides, it is to be supposed that the party in possession, having paid his money, would not abandon the possession, until he got a return of it, or some provision was made for securing it. • ■ He would scarcely have left so large an amount a matter of open account. Nor is it probable that the ques- ' *455tion as to the rents and profits of the land would be left unliquidated. It is much more probable that when parties come to an arrangement of a business matter, they settle all the terms of the contract, than that they leave them unadjusted. The word “ cancel,” applied to the agreement, under the circumstances, means no more than “ doing away with ” an existing agreement upon the terms and with the consequences mentioned in the waiting. What is not said, is excluded ; and whatever was meant to be obligatory was expressed.
Judgment affirmed.