The following opinion was filed February 15, 1946’:
Barlow, J.(on motion for rehearing). From the briefs filed on the motion for rehearing it is evident that the use of *95bthe words “rescind” and “rescission” in the opinion has caused some confusion as to the law applicable. 5 Williston, Contracts (rev. ed.), p. 4061, sec. 1454A, in discussing the meaning of the words “rescind” and “rescission” says:
“ ‘Rescind’ and ‘rescission’ are words in ordinary use, and should have no different signification in legal terminology than they have in other connections. ‘Rescind’ means to abrogate or annul, and may be applied to a variety of transactions such as a vote, a transfer of property, or a contract. When and how such transactions may be rescinded is not part of the definition of the# resulting rescission. There are other words by which the result may be described, and whether a contract is spoken of as terminated, abrogated, annulled, avoided, discharged, or rescinded is not in itself important. There are, however, several sources of unnecessary confusion in the use of these common words ‘rescind’ and ‘rescission.’ ”
In the same subsection, quoting from Restatement, Contracts, we have the following:
“. . . In many cases where a partly performed contract is rescinded by the act of one party for the fault of the other, restoration of what has been received, or its value, is not a condition qualifying the right to rescind.”
What we said in this opinion was that the plaintiff Illges and interpleaded defendant Hamm had breached the contract to such an extent that the defendant Congdon had a right to terminate the contract, which he did. Plaintiff Illges and interpleaded defendant then brought an action for damages for alleged breach of contract. Defendant Congdon counterclaims for damages for alleged breach of contract on the part of Illges and Hamm. We hold he had a right to do this, and it did not constitute an election of remedies as he had already terminated the contract.
*96The only questions left to be determined are what damages, .if any, Congdon suffered by reason of the breach of the contract on the part of Illges and Hamm, and the rights of the parties in the remaining assets of the joint enterprise in accordance with the terms of the contract which the court found had been entered into.
By the Court. — Motion denied with $25 costs.