It is to be assumed that all proper instructions were given to the jury upon the question of the rescission of contracts and all other questions arising in the case, and that the verdict for plaintiff was properly rendered upon the evidence, provided the action of indebitatus assumpsit will lie, upon the facts here stated.
Defendant claims that here has been a part performance by plaintiff in conveying the wild land to defendant, and that plaintiff has a remedy by bill in equity to enforce a specific performance of the contract, and that having such a remedy he can have no other. But we do not understand such to be the law.
In Allen v. Webb, 24 N. H. 278, it is hold that "where one party to a contract refuses to perform his part of the same, the other party may insist upon the contract being carried out, or he may avail himself of the refusal and rescind the contract.” Without considering, therefore, whether the partperformance- by plaintiff was such as to take the case out of the statute, and enable him to enforce a specific performance on the part of defendant, we think that if such were the admitted fact, the plaintiff might elect his remedy, and either enforce the contract, or rescind it and recover back the value of the land he had conveyed. If the defendant had not sold this land, the count for money had and received could not have been maintained, though the count fpr land sold would then have been well enough. But the plaintiff may. now, by adopting the act of selling on the part of defendant and ratifying the same, recover the money which defendant received for the land under the count for money had and received.
A verdict may therefore have been properly returned for plaintiff on either count in his declaration. The defendant has no cause of complaint and the exceptions are overruled. See Stevens v. Cushing, 1 N. H. 18; Lane v. Shackford, 5 N. H. 130; Child v. Moore, 6 N. H. 33; Fuller v Little, 7 N. H. 535; Luey v. Bundy, 9 N. H. 298; Ayer v. Hawkes, 11 N. H. 148; Snow v. Prescott, 12 N. H. 535; Gillet v. Maynard, 5 Johns. 85; Merrill v. Downs, 41 N. H. 72.
Judgment on the verdict.