Opinion by
Beaver, J.,It is impossible, in the consideration of the sufficiency of the affidavit of defense in this case, to separate the agreements set forth in the plaintiff’s statement and in the defendants’ affidavit of defense respectively. In the latter, dated October 11, 1898, plaintiff agreed to purchase from defendants lots Nos. 10 and 11, two feet of No. 12, also eleven feet of No. 9, for the price or sum of $1,270.84. In the former, dated June 16, 1899, he agreed to purchase lots No. 10, 11 and 12 for the price or sum of $1,500. Two of the said lots so agreed to be purchased are the same in both agreements and in the latter one the whole of lot No. 12 is substituted for eleven feet of No. 9 and two feet of No. 12. The cash payment upon the later purchase consists of $275 paid under the first agreement, being “ allowance for cash paid on old book this day canceled.” This clause in the new agreement can be understood only as read in connection with the old. The balance was to be paid in monthly instalments of $80.00 each, on the first day of each month, until the whole amount is paid in full. Under the terms of the first agreement of purchase, if it had been canceled, the defendants would have been entitled to the entire amount paid, as liquidated damages, inasmuch as it is therein provided that “ all payments made from date of purchase to a period of twelve months from the date of said purchase shall be retained by the party of the first part as liquidated damages, and the balance returned to the party of the second part.” Under the provisions of the later contract, “ the first six months’ instalments shall be retained by the party of the first part, as liquidated damages for the breach of this contract, and the remaining instalments which he has paid shall be returned to the said party of the second part or held subject to his call without interest; *586or the said party of the first part may, at its option, consider said contemplated sale in force and proceed to recover the said instalments and interest thereon by due process of law.” The cash payment of $275 was unquestionably an instalment of the $1,500 purchase money agreed to be paid. It was not a regular monthly instalment, as provided for in the agreement, but the stipulation does not provide for the retention of monthly instalments but for “ the first six months’ instalments.” An instalment, according to Bouvier, is “ a part of a debt due by contract.”
Whether the cash payment of $275 be regarded as one of the first six months’ instalments, however, or not, the affidavit of defense specifically states that “ the plaintiff has frequently admitted to the defendants the facts as above stated and that he had no claim to the said sum of $330, whereupon defendants elected to retain said sum of $330 as liquidated damages,” by which said election it is to be presumed that the defendants gave up their right under the agreement to consider said contemplated sale in force and proceed to recover the said instalments and interest thereon by due process of law. Assuming this statement to be true, the plaintiff thereby secured immunity from a suit for the payment of the unpaid balance of the purchase money. Having secured this immunity, he should not now be allowed to repudiate the agreement under which it was obtained. We think the defendants should have an opportunity to substantiate this part of their contention before a jury.
Judgment reversed and a procedendo awarded.