Opinion by
Trexler, J.,This is an action of replevin tried before the court below without a jury. The facts as found by the trial judge may be summarized as follows:
Burt Leach by writing dated June 1, 1909, ordered from the plaintiff, the Johnston Harvester Co., a “bonnie binder.” The order provided that title to the machine “should remain in the Johnston Harvester Co., until fully settled for.” At the time the order was signed by him and as an inducement to the giving thereof, plaintiff’s agent agreed that Burt Leach might cancel the order at any time before August 1, 1909. The binder was shipped and the vendee declined to take it, but was persuaded by the agent to accept it. The station agent of the railroad refused to deliver the machine to the vendee until the freight was paid and the vendee declined to pay the freight. He informed the local agent of the plaintiff that he would not take the binder. A few days later a conference was had between the agent of the company and Leach and the latter persisted in his refusal. The agent then declared he had a place to use the machine and that if Leach afterwards desired to order another machine he would procure it for him. Leach never had the machine, never used it, never had possession of it, physical or constructive. He refused to take it and rescinded the order. The agent of the Harvester Company recognized his right so to do and took possession of the machine for the company, removing it to a barn in the neighborhood. In the latter place it was seized, by proceeding in foreign attachment and sold as the property of Burt Leach.
*99These are the facts as they appear upon the record and they are all supported by the evidence in the case. The trial judge found in favor of the plaintiff.
There are eleven assignments of error but they need not be considered separately. Some of them relate to the findings of facts by the trial judge. After a careful reading of the testimony we find there was competent evidence to support all the findings.
The other assignments of error may be grouped under one proposition. Was the court right in admitting the evidence of a single witness, the party to the original order, to show a contemporaneous agreement which induced him to sign the contract? Notwithstanding the carefully prepared argument of the appellant, we feel that the decision of the case rests not in the answer to the above proposition but in the question as to whether the parties to the contract rescinded it. The judge trying the case found such to be the fact. He had sufficient evidence before him to sustain that finding. When that fact was found the matters which entered into the execution of the contract ceased to be of any moment. Both of the parties were competent to make a contract and to unmake it. The rescission, which took place before the attachment proceedings were had, ended the binding force of the contract and both parties were relieved of it. The purchaser of the machine refused to accept it. Whether he had a right to do so matters not. The agent of the company acquiesced in his refusal and provided a place for the machine. To quote his language “he said he had a place to use the machine and would order another one if I (Leach) wanted it.” Could the purchaser have maintained title against the vendor after such act on his part? His attaching creditor’s rights rose no higher than the debtor’s.
As stated before, apart from any other question involved in the case we think the rescission' of the contract is the determining factor of the whole matter and the *100court having found that the contract was annulled by the parties thereto, the judgment necessarily had to be for the plaintiff, the Harvester Company, the owner of the machine.
All of the assignments are overruled.
Judgment affirmed.