The parties entered into a special contract that the defendant should construct a machine for the plaintiff which should answer certain purposes, and correspond with the representations which were made *459respecting it; and that if the machine did not, upon trial, prove to be as recommended, the plaintiff might return it, and the defendant should pay what the plaintiff should have advanced. The plaintiff made certain advances to the defendant, under this contract, and the question is, whether a state of facts is shown by the evidence that enables the plaintiff to maintain an action of general indebitatus assumpsit, to recover back the advances thus made.
In Stevens v. Lyford, 7 N. H. 360, it was said, “ that an action for money had and received will not lie to recover back money which has been paid upon a special contract, so long as that contract remains in force unrescinded.” But a breach of a contract amounts sometimes to a rescission, at the election of the party seeking his remedy. Fuller v. Little, 7 N. H. 435; Snow v. Prescott, 12 N. H. 535.
But there is evidence in the ease from which a jury might well find that the defendant agreed to rescind it. Jenkins testifies, in effect, that the defendant admitted the agreement to have been, that if the machine did not answer the contract, he would receive it again, and pay the plaintiff his advances; that the machine did not answer the requirements of the contract, and that he had as lief take it as not, and would go for it; that he inquired what the plaintiff demanded for the wheels he had furnished, and, on being informed, found fault with the price.
~We therefore think that the evidence was sufficient to sustain the verdict, to the extent of the advances made upon the contract, but not to recover other damages that ensued upon the breach of it. If such are embraced in the verdict, they must be remitted, if they are capable of being distinguished and computed; and, upon that being done, there may be
Judgment on the verdict.