(s) Hodgson v. Davies, 2 Camp. 530; Okell v. Smith, 1 Starkie, 107; Prosser v. Hooper, 1 J. B. Moore, 106.

(t) Kingsley v. Wallis, 14 Me. 67;

Holbrook v. Burt, 22 Pick. 646. One party may have a right to rescind a contract, which may yet be binding upon the other; and although the contract was, in a certain event, by its terms, to be "null and void." Thus, where by Stat. 17 Geo. III. c 60, § 8, the vendor at an of the contract, or disables himself from performing it, (x)1 the other party may treat the * contract as rescinded. (y) But not if he has been guilty of a default in his engagement, for he cannot take advantage of his own wrong to defeat the contract. Nor 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. (z) 2 Generally, no contract can be rescinded by one of the parties, unless both can be restored to the condition in which they were before the contract was made.(a) 3 If,

Generally, as a contract can be * made only by the consent of all the contracting parties, it can be rescinded only by the consent of all. (u) But this consent need not be expressed as an agreement. (v) If either party, without right, claims to rescind the contract, the other party need not object, and if he permit it to be rescinded, it will be done by mutual consent. Nor need this purpose of rescinding be expressly declared by the one party, in order to give to the other the right of consenting, and so rescinding. There may be many acts from which the opposite party has a right to infer that the party doing them would rescind; (w)1 and, generally, where one fails to perform his part auction was empowered to make it a condition of sale that the purchaser should pay the auction-duty in addition to the purchase-money, and it was declared that upon his neglect or refusal to pay the same, the bidding "should be null and void to all intents and purposes;" it was held, that the contract is not by reason of such neglect or refusal absolutely void, but voidable only, at the option of the vendor. Malins v. Freeman, 6 Scott, 187.

(u) Whether there has been a rescission of the contract is a question for the jury. See Fitt v. Castanet, 4 Man. & G. 898.

(v) The rescission by one party may be as strongly expressed by acts as by words. Thus, in Goodrich v. Lafflin, 1 Pick. 67, A agreed to deliver to B some step stones, which were to be paid for, one half in money and one half in goods. The stones were delivered, and B delivered some of the goods upon the special contract. B having sued A and recovered judgment for the value of the goods delivered, declaring upon the common counts only, it was held, that A might, upon the common counts only, recover the value of the stones. So in Hill v. Green, 4 Pick. 114, by a contract under seal the plaintiff agreed that his son, a minor, should work for the defendant nine months, and the defendant agreed to give him, therefore, certain chattels, which were delivered forthwith, but were to remain the property of the defendant until the service should be performed. The plaintiff sold the chattels to a stranger, and the boy was afterwards wrongfully turned away by the defendant before the expiration of the term. The defendant reclaimed the chattels, and the vendee, knowing all the facts, settled the demand by paying him a sum of money. Held, that the written contract was rescinded, and that the plaintiff was entitled to recover on a quatum meruit for the service performed; but that neither the plaintiff nor his vendee could recover back the money paid to the defendant. In Quincy v. Tilton, 6 Greenl. 277, it was held, that where parties agree to rescind a sale once made and perfected without fraud, the same formalities of delivery, etc., are necessary to revest the property in the original vendor, which were necessary to pass it from him to the vendee. In James v. Cotton, 7 Bing. 266, the plaintiff engaged to let land to the defendant on building leases, and to lend him £6,000 to assist him in the erection of 20 houses on the land. Defendant agreed to build the houses, and convey them as security for the loan, which was to be paid at a time fixed. When six houses had been built, and part of the £6,000 had been advanced, plaintiff requested defendant not to go on with the other fourteen houses. Defendant desisted. Held, that this amounted to a rescission of the contract by mutual consent, and the plaintiff was allowed to recover the amount advanced on a count for money lent. - If by the terms of the contract it is left in the power of the plaintiff to rescind by any act of his, and he does it, or if the defendant afterwards consents to its being rescinded, the plaintiff may treat the contract as rescinded. Towers v. Barrett, 1 T. R. 133. (w) See preceding note.

1 In Davis v. Hubbard, 41 Wis. 408, which quotes the text with approval, it was decided that if one fails to perform a contract, as to dig a well, within the time agreed or a reasonable time, the other party may treat the contract as rescinded, and is not liable on a quantum meruit; but if within time agreed on, or a reasonable time, one is refused permission to fulfil such an agreement, he may recover on a quantum meruit.

(r) Thus in Keys v. Harwood, 2 C. B. 905, A agreed to board B, and to receive pay in certain goods. Before the time of payment arrived, B allowed those goods to be seized and sold, on execution against him. This was held a rescission of the contract, and A was allowed to recover on a general count, and without reference to the special contract So in Planche v. Col burn, 8 Bing. 14, where A agreed to write a treatise for a periodical publication, which, before the treatise was completed, the defendant discontinued, this was considered an abandonment of the contract by the defendant, and the plaintiff was allowed to recover on a quantum meruit, without completing the treatise. See Shaw v. The Turnpike Co. 2 Penn. 454, 3 id. 445; King v. Hutchins, 8 Foster, 561; also Warden of the Church of St. Louis v. Kerwan, 9 La. An. 31. In Dubois v Delaware Canal Co. 4 Wend. 285, Marcy, J., said: "Every breach of a special agreement by one party does not authorize the other to treat it as rescinded; but there are some breaches that do amount to an abandonment of it. There is not, perhaps, any precise rule, which, when applied to the breach of a contract, certainly settles the question whether it. is thereby abandoned or not; but, if the act of one party be such as necessarily to prevent the other from performing on his part according to the terms of his agreement, the contract may, I think, be considered as rescinded."