If the party who has performed in part can not be placed in statu quo, the adversary party can not treat the contract as discharged because of partial failure of consideration.1

Under contract whereby A was to convey to B a certain tract of land in consideration whereof B agreed to (1) relinquish her right of appeal from a certain decree, and (2) quitclaim her interest in other property, a failure of title to the realty quitclaimed by B will not be a ground for rescinding the contract after B has lost her right of appeal.2 Even where the party who is not in default might avoid the contract for partial failure of consideration if he returned what he had received thereunder, he can not avoid the contract if he retains substantial and material benefits thereunder.3

7 Roberts v. Chatwin, 108 Ark. 562, 158 S. W. 497.

8 Leavitt v. Fletcher, 92 Mass. (10 All.) 119. (Accordingly A may take advantage of a re-entry clause in case of B's failure to pay rent.)

9 Hudson v. Archer, 9 S. D. 240, 68 N. W. 541.

10 Ft. Wayne Electric Light Co. v.

Miller, 131 Ind. 499, 14 L. R. A. 804, 30 N. E. 23.

11 Rioux v. Brick Co., 72 Vt. 148, 47 Atl. 406.

12 Daniels v. Englehart, 18 Ida. 548, 39 L. R. A. (N.S.) 938, 111 Pac. 3.

1 Daniels v. Englehart, 18 Ida. 548, 39 L. R. A. (N.S.) 938, 111 Pac. 3; Danieleon v. Daniel son, 165 Wis. 171, L. R. A. 1917D, 624, 161 N. W. 787.