(concurring):
Judges Lynch and Mason and I are firmly of the opinion that, under a contract of the character of the one here involved, surrender of the unpaid notes, or indemnity against liability thereon, if the vendor has negotiated them, is a condition precedent to recovery of the property by judicial process, after default in payment. This view is predicated on our interpretation of the contract as to the intent of the parties, and not on any rule of law or result of legal process. As to rights respecting the unpaid notes the contract is silent. It does not say in terms, whether, after recaption of the property, there shall be any liability on them or not. Here, as in other cases of uncertainty as to intent and purpose respecting a particular, limited and subordinate phase or feature of a contract, it is necessary to consider the general scope and purpose thereof, the situation of the parties and all the circumstances, as well as the reason, equity and fairness of the results. Could it have been the intention of the purchaser that, in the event of failure to pay an installment of the purchase money and consequent loss of the property, he should be required to pay the remaining installments? The inequity of such a result constrains the courts generally to answer in the negative, and to relieve on the ground of failure of consideration. It is just as easy to say there is no liability because the parties never intended it, and no legal rule inhibits adoption of that view. We regard the contract as one providing for a qualified or partial rescission, at the option of the vendor, in ease of default in payment. Under the *803broad right of contract, their power to make such a provision is manifest. They are not held by law to any particular form of rescission or adjustment of their rights. Though rescission, as ■ legally defined, requires restoration of the status quo, nothing in the law precludes a modification of it by contract, if the parties desire only partially to adopt the principle and terminate their contract and adjust their rights by a partial, modified or qualified rescission. 6 R. C. L., Title Contracts, see 318, p. 936. The rule is one of construction, based upon presumed intention, not- one of law limiting or controlling intention.
This conclusion harmonizes too with a well settled rule of eontsruction. On default, there is right to terminate the contract by a forfeiture clause. That clause forfeits, in terms, only the payments actually made. It does not say the vendee shall lose, in addition to the money actually paid, the sums represented by the .unpaid notes, or any part thereof. Forfeiture clauses are always strictly construed and confined, in their operation and scope, to the letter thereof. Nothing is ,ever added by way of mere intendment. Elliott on Contracts, sec 4111. To say the vendor may hold the notes after recovery of the property and not be able to enforce payment thereof, is to state a contradictory proposition, which, to a mind not versed in legal technicality, would be absurd. And its plausability rests altogether 'upon the theory of a supposed legal rule or principle which makes the parties assent to something by way of forfeiture, that they have not expressed. The contract says nothing about remedies, procedure or legal rules or principles. None of them can be made a part of it otherwise than by addition to its terms, on-the assumption of intention to adopt them.
Contracts are to be so construed as to make them operate justly and equitably, when their terms will permit such an analysis ,and application, and always so as to avoid absurdities and inequitable results, when that can be done without violation of the terms or departure therefrom. Negotiable notes given under a contract of this kind and held by bona fide purchasers thereof, would have to be paid by the maker, and, if he would then have right of recourse upon the vendor, *804the latter might be utterly insolvent. In such case, the forfeiture might be immensely enlarged. The notes are not the contract. They constitute only a part of it, and the rights of the parties are determined by the entire contract.
Reversed1 cm id remanded for new trial.