There is no evidence that the contract was ever rescinded. It is unnecessary to determine which of the parties *414was right in the controversy which arose between them on the 1st of January 1850, as to the terms and conditions upon which, under the provisions of the contract, the plaintiff was entitled to demand a conveyance of the premises. It is enough that their dispute related to the construction, and not to the existence or continued validity of the contract. Warren denied his obligation, and refused to pay the money thus demanded of him; and for this reason, the defendants withheld the delivery of their deed to him. But neither of the parties intended to repudiate, annul or rescind the contract. On the contrary, both insisted upon its performance, and each of them pursued the course which was supposed to be most likely to enforce it according to the construction which they respectively put upon its provisions. This is abundantly apparent from their conduct. On the one side, the defendants would not execute and delivei to "Warren a deed of the estate, without previous payment of the interest they claimed to be due; but yet they did not offer or propose to restore the money they had already received of him, and they suffered him to remain, as during the whole of the preceding year he had been, in the quiet and undisturbed possession and enjoyment of the premises. On the other hand, though there was no conveyance of the estate, and the deed of it was purposely withheld from him, Warren, without setting up any pretence of right or claim to it other than what he derived under the contract, continued for a long period of time, and until the lapse of many months after another and large instalment of the purchase money liad become due and payable, to hold, control and treat it as his own. These acts, and this course of proceeding, are utterly inconsistent with the supposition that the contract was rescinded, or that either of the parties thereto considered it as ceasing to be in force.
After the 1st of November 1851, when the defendants ousted the tenants of Warren, and thenceforward held the premises Under their own exclusive control, it is undoubtedly true that he entertained a different opinion and preferred a different claim For it is agreed, that he regarded these acts as inconsistent with the rights secured to him by the contract, and that, believing *415himself to be thereby authorized to consider it as wholly rescinded, he did accordingly ever afterwards treat it as disaffirmed and annulled. But he was then in no such condition as to be entitled to rescind it without the consent or acquiescence of the defendants. For nearly three years, he had been the undisturbed occupant of the estate, claiming and being allowed by the defendants to hold it solely under the provisions of the contract. In this way, he derived some advantage from its partial performance; and thereby disabled himself from putting the defendants in the situation in which they were before the contract was made. He could not legally retain the advantage, and at the same time wholly invalidate the contract by his own act and at his own pleasure. He should have done whatever else of duty devolved on him, and then, for a breach of the contract by the defendants, if there were any, relief would have been afforded him in equity, by a decree for specific performance, or an action at law for the recovery of damages. Hunt v. Silk, 5 East, 449. 2 Parsons on Con. 192, note. It is not contended by the plaintiff that the defendants ever in fact assented to, or tacitly acquiesced in, the rescission of the contract. Instead of this, all their efforts were for the avowed purpose of enforcing it. It remains therefore a subsisting obligation upon the parties to it; and the defendants have a perfect right to retain the money which has been paid to them in conformity with its stipulations.
Judgment for the defendants