By the Court,
Harris, J.I think the release tendered by the plaintiff to the defendant was not such as the defendant had a right to require, in performance of the agreement of the 27th of February, 1843 ; but the view I have taken of the other questions in the case, renders it unnecessary to decide this point. Nor do I deem it necessary to determine whether the release which was presented to the plaintiff for execution, by the defendant’s agent in March, 1843, was in conformity with the agreement, although it seems to be substantially what the *287plaintiff had bound himself to give. It was the duty of the plaintiff to prepare and execute such a release as he had agreed to give, and if the instrument the defendant had prepared was objectionable, he should, when called upon to execute the release, have performed his agreement without unreasonable delay. His omission to do so, for two years, may well be regarded as a relinquishment of the contract on his part.
But it is evident from the conduct and declarations of the plaintiff that he did not intend to perform the agreement, although, when called upon in March, 1843, he refused to execute the release which was presented to him for execution, on the ground that it was not drawn in accordance with his agreement, yet he added that he considered the contract at an end, and offered to refund the amount that had been paid by the defendant. Three months afterwards, when asked by the defendant whether he had concluded to give the release, he stated that he was unable to do so, as the quarter sales probably belonged to some other persons. He also offered to refund to. the defendant the money he had already paid, and the defendant agreed to receive it. From this time, at least, the contract must be considered as rescinded. Having refused to execute the release, and declared his inability to do so, the plaintiff had no right afterwards to insist upon a performance of the agreement. The defendant having consented to receive back from the plaintiff the money he had paid, could not afterwards claim from the plaintiff the execution of the release. The acts of both parties sufficiently show a mutual agreement that the contract between them should be abandoned. The contract being thus abandoned by mutual agreement, the note for which this action is brought, and which was given as a part of the consideration for the performance of the contract by the plaintiff, cannot be recovered. On the contrary, I see no reason why the plaintiff may not be compelled to refund to the defendant the money already paid. (Gillet v. Maynard, 5 John. 85. Van Benthuysen v. Crapser, 8 Id. 257.) I am of opinion, therefore, that the circuit judge erred in charging the jury that the tender of a release by the plaintiff on the 29th of April, 1845, was *288a good performance of the agreement by the plaintiff, and that the defendant ought to have accepted the same and paid the note. A new trial must be granted.