The opinion of the court was delivered by
Royce, J.The case does not show, that any question was raised on trial, as to the proper application of the evidence to either count in the declaration. We have therefore only to decide, whether, upon the facts admitted and proved, the plaintiff was entitled to recover ; and if so, whether the court rightly gave as damages the fifty dollars and interest.
It is insisted, that the plaintiff, by recovering in his former action for the two stoves not delivered, obtained all the satisfaction, to which the contract entitled him. But we think it clear that the two stipulations of the defendant were entirely distinct, not only as to the time and manner of performance, but in purpose also. The first was designed to secure to the plaintiff the seasonable possession of all the stoves, which he purchased and paid for ; and his recovery for a breach of that stipulation only placed him in the same condition, as if the eight stoves had all been received in pursuance of the contract. By the other, the defendant engaged to receive back two of the stoves, if they remained unsold at the end of a year, and to refund the purchase money for the same, with interest. - This was nothing less, in effect, than a contract that the purchase should become rescinded at the end of the yeár, as to two of the stoves, if *31then unsold. The undertaking to pay interest from the date of the contract, on the sum to be refunded, evidently shows this to have been the nature of the stipulation. It may be said, that the plaintiff had an option to treat the contract differently, for that he was not bound to part with the stoves, unless the purchase money should be repaid according to the terms of the contract. And there is no doubt, that the taking back of the stoves and the repayment of the fifty dollars were intended to be concurrent acts, so that the plaintiff could not have been required to suffer the former to be done without the latter. But this does not prove, but that the fact, that they remained unsold at the end of the year, together with the notice and demand of March 16,1842, operated, at the plaintiff’s election, to revest the property in the defendant, subject to a lien in favor of the plaintiff for the money.
The construction thus given to the contract removes all difficulty upon the question of damages. It shows the case to be widely different from the one put in the argument, where a party agrees to make a purchase of property, and then refuses to proceed in the purchase and take the property. In such a case the loss of the bargain constitutes the proper rule of damages, because the property never passed. But here, although the property did pass in the first instance, yet the plaintiff was enabled by the contract to cause it to revest in the defendant, upon the contingency which afterwards happened. And as the plaintiff chose to avail himself of that right under the contract, there was no longer any consideration, upon which the defendant could retain the fifty dollars. The plaintiff became entitled, therefore, to the whole of that sum, as well upon obvious principles of law and justice, as by the express terms of the defendant’s undertaking.
Judgment of county court affirmed.