delivered the opinion of the court.
The lots were sold as noted in the contract with reference to a recorded plat of the tracts mentioned, a copy of which was introduced in evidence without objection. Delineated on this plat is a roadway along the east boundary, of the premises which the plaintiff agreed to purchase. The west line of lot 25 is common with the east boundary of lot 33, immediately north of which is lot 32, bordering upon another roadway outlined upon the map.
1. In our judgment, when the defendant accepted from the company the deed with the condition already noted, notified the plaintiff of his ownership of the land, and demanded and received payment of the installment on the purchase price, the legal effect of the transaction was to cast upon the defendant the duty of performing the contract respecting the land. By the transaction there was created between the plaintiff and the defendant a quasi privity of both estate and contract. At least the defendant is estopped to deny that conclusion, which is tantamount to proof of such an engagement made by the defendant.
■2. As between the parties to this action, that result is not obnoxious to the statute of frauds. The defend*147ant did not agree with the plaintiff to answer for the debt or default of the company, but he did agree with the corporation to perform its contract with Miller. His duty in that behalf is embodied in the written deed which he accepted and in the contract to which the deed refers. This convention was for the benefit of Miller, and, under proper conditions, he can enforce such remedy as may be appropriate for the breach thereof by Beck: Feldman v. McGuire, 34 Or. 309 (55 Pac. 872); Oregon Mill Co. v. Kirkpatrick, 66 Or. 21 (133 Pac. 69).
3. The initial relation of the parties being thus determined, we proceed to consider the effect of the subsequent proceeding. It appears upon the face of the complaint that Miller was tardy in making payment of the installment due December 20, 1913. He himself declares that it was not until the next day that he paid anything upon that part of the purchase price, and then only $250, and that it was not until the subsequent April that he paid the remainder due the previous December 20th, with interest. Under the terms of the contract, if Beck had chosen to enforce it, he could have refused the payment made the day after it became due, and at once declared a forfeiture of the contract, leaving Miller without remedy; but he did not do this. He admits accepting payment of the money and interest after the same became due as stipulated. The mere failure to pay promptly did not necessarily work a rescission of the contract. The acceptance of the money after it was due without objection keeps the contract alive: Higinbotham v. Frock, 48 Or. 129 (83 Pac. 536, 120 Am. St. Rep. 796); Davis v. Wilson, 55 Or. 403 (106 Pac. 795); Graham v. Merchant, 43 Or. 294, 305 (72 Pac. 1088); Frink v. Thomas, 20 Or. 265 (25 Pac. 717, 12 L. R. A. 239). We conclude, *148therefore, that the agreement was efficacious when the contention arose about the. right of way.
4. Miller engaged to buy, and the company obligated itself to sell, not only the two lots, but also “a right of way for road purposes along tracts 32 and 33 until * * such time as the twenty-foot road along the front of tracts numbered 24 and 25 shall have been opened.” Construing this original contract, it is plain that the purchaser was not bound to open the road on the east side of the lots purchased. The writing bound the seller to a right of passage along the north line of 32 and 33 until the other road was opened. The logical deduction is that Beck, who, as we have seen, assumed the performance of this contract, must furnish one or the other right of way. His failure to do so on demand constituted a situation of which Miller had a right to avail himself- as a breach of the contract by Beck and to use it as a basis of rescission on his part and of a consequent action to recover the moUey already paid. Up to that time the contract was unimpaired. Although Miller had been tardy in his payments, Beck had taken his money without insisting on time being the essence of the contract. The refusal of Beck to provide a right of way in one or the other direction constituted pro fcmto a failure of the title because the alternative right of- way was one of the things for which the contract of purchase was made. Miller, therefore, had a right to act upon this infraction, rescind the contract, and sue for damages resulting from the breach: Armsby v. Grays Harbor Commercial Co., 62 Or. 173 (123 Pac. 32).
5. The demand for the right of way, Beck’s refusal to provide the same, and the subsequent demand for return of payments constitute in legal effect such rescission of the contract by Miller. Under these *149circumstances, it is not necessary for Miller to continue to perform the contract or to tender payments subsequently due as a condition precedent to maintaining this action. Haying rightfully elected to rescind the contract, its provisions requiring performance became inert. A cause of action arose at once upon the rescission, and subsequent performance is not requisite.
6. The admitted facts and testimony about the closure of the right of way and the failure to open the one indicated on the map were sufficient to allow the plaintiff to go to the jury on that subject, and thus defeat the motion for nonsuit. Of course it would be competent for the defendant to show in his defense that a subsequent agreement was made and performed whereby the roadway delineated on the map was opened within the meaning of the contract, but that feature is not now before us. For the purposes of nonsuit, we can only consider the showing made by the plaintiff upon the pleadings and the testimony. The court was in error when it sustained the motion for nonsuit.
The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinión.
Reversed. Rehearing Denied.
Mr.' Chief Justice McBride, Mr. Justice Moore and Mr. Justice Ramsey concur.