The plaintiff having brought his action ex deHoto, and ignored the written agreement, has treated the same as rescinded. We deem it unnecessary to consider the question, usually difficult of determination, discussed by counsel as to whether the covenants in this agreement are mutual and dependent, or independent. Conceding them, for the purposes of this case, to be dependent, the right of plain*104tiff to rescind the agreement must depend' upon the following questions: First, has the agreement 'upon the part of the defendant been partly executed, by a performance of part of the covenants ? And, if so performed in part, second, has the plaintiff placed, or offered to place defendant vn statu quo, by restoring or offering to restore the consideration received? third, can plaintiff rescind without such restoration or offer ?
I. The question as to the part performance of the covenants on the part of defendant involves a close scrutiny of the written agreement. From the recitals in the agreement, it appears that plaintiff demanded of defendant: first, payment for the injuries already done; second, the construction of a bridge to prevent future injuries; and that the defendant, while denying legal liability for either, yet, to promote harmony and command the good will of those residing along the road, was willing to bear a portion of the loss, and to construct a bridge in the embankment. The plaintiff, in consideration of the construction of said bridge, and of the damages agreed to be paid, agreed to,release, and does forever release and discharge, the defendant from aE future-claims for damages caused by high water.
The consideration moving to plaintiff is a concession of both the demands made, and an agreement, not only to buEd the bridge, but to pay for the damage already done. And, in consideration of both these undertakings upon the part of defendant, the plaintiff agrees to release all future claims for damages.
Now the evidence shows that, in pursuance of this agreement, the defendant paid plaintiff $450. It does not aid plaintiff to say that this'' payment was made in consideration of damages already sustained.
It appears that defendant did not admit a legal liability to pay this damage, and non constat, that it would have *105agreed to do so had not plaintiff agreed to release future claims.
It seems to us quite apparent, therefore, that the payment of the $450 by defendant is a part performance of the covenants in the agreement.
II. It is not claimed that there has been any restoration or offer to restore what was received under the contract.
III. The plaintiff is not iM a condition to rescind this contract and sue for damages independently of it. A party cannot rescind if the failure of the other party be but partial, leaving a distinct part as a subsisting and executed consideration, and leaving also to the Other party his action for damages for the part not performed. Generally, no contract can be rescinded by one of the parties unless both can be restored to the condition in which they were before the contract was made. If, therefore, one of the parties has derived an advantage from a partial performance, he cannot hold this and consider the contract as rescinded, because of the non-performance of the residue, but must do all that the contract obliges him to do, and seek his remedy in damages. 2 Parsons on Contracts (5th ed.), p. 679; Franklin v. Miller, 4 Ad. and El. 599; Hunt v. Silk, 5 East, 449; Bud v. Blandford, 2 Young and J. 278. The plaintiff’s remedy is upon the contract, and not as here sought. Another consideration sustains this conclusion. The agreement of defendant is to erect the bridge at such place as plaintiff may designate, and within a reasonable time. How, then, can plaintiff recover without showing such' designation, and the lapse of a reasonable time thereafter ? And how can these things be shown without suing upon the contract ? The moment the plaintiff alleges these things as essential to his recovery, his action becomes one upon the agreement. It follows that the court did not err in the instruction, nor in refusing to admit the evidence offered. Affirmed.