(y) But this is not always the case. Thus, in Weaver v. Sessions, v Taunt 154, the plaintiff covenanted to furnish the defendant all the malt he should want for a certain specified period, which should be "good, well dried, and marketable." The defendant covenanted to buy all hit malt of the plaintiff, and not to buy elsewhere, unless the plaintiff neglected or refused to deliver him good malt on request. The plaintiff having delivered bad malt, the defendant bought of others, without having first requested the plaintiff to furnish better. The court held, that the non-compliance by the plaintiff, merely in delivering bad malt for good, did not authorize a rescission of the contract, and that the defendant was liable for purchasing of others, before the plaintiff had refused or neglected on request to furnish better.

(z) In Franklin v. Miller, 4 A. & E. 599, Littledale, J , says: "It is a clearly recognized principle, that, if there is only a partial failure of performance by one party to a contract, for which there may be a compensation in damages, the contract is not put an end to." See ante, p. *530, n.

(a) Hunt v. Silk, 5 East, 249, the

1 Or, being insolvent, so acts as to give the other party reasonable ground for believing that he intends to put an end to the contract. Bloomer v. Bernstein, L. R. 9 C. P. 588; Morgan v. Bain, L. R. 10 C. P. 15. See Ex parte Chalmers, L R. 8 Ch. 289. Where executory contracts are made on different days for the sale of goods, the price of which is to be payable on delivery, and the deliveries under the second contract are, by its terms, to commence when the full quantity required by the first contract has been shipped, the purchaser cannot, after refusing to pay for goods delivered under the first contract, unless the seller will give security for the entire fulfilment of the contracts, maintain an action for non-delivery under the second contract. Stephenson v. Cady, 117 Mass. 6.

2 A party cannot disaffirm a contract in part on the ground of fraud and affirm it as to the residue, but must rescind in toto, either restoring everything obtained by it and recovering back his payments, or retaining the property and sue for damages for the fraud. Grant v. Law, 29 Wis. 99.

3 If no restoration to the prior condition is possible, the aggrieved party may have compensation in damages. Wooster v. Sage, 67 N. Y. 67; Manahan v. Noyes, 52 N. H.

therefore, one of the parties has * derived an advantage from a partial performance, or so disposed of property leading case upon this point There A agreed, in consideration of £10, to let a house to B, which A was to repair and execute a lease of within ten days; but B was to have immediate possession, and in consideration of the aforesaid was to execute a counterpart and pay the rent. B took possession and paid £10 immediately, but A neglected to execute the lease and make the repairs beyond the period of the ten days, notwithstanding which B still continued in possession. Held, that B could not, by quitting the house for the default of A, rescind the contract and recover back the £10 in an action for money had and received, but could only declare for a breach of the special contract; for a contract cannot be rescinded by one party for the default of the other, unless both can be put in statu quo as before the contract; and here B had had an intermediate possession of the premises under the agreement And Lord Ellenborough said: "Where a contract is to be rescinded at all, it must be rescinded in toto, and the parties put in statu quo. But here was an intermediate occupation, a part execution of the agreement, which was incapable of being rescinded. If the plaintiff might occupy the premises two days beyond the time when the repairs were to have been done and the lease executed, and yet rescind the contract, why might he not rescind it after a twelvemonth on the same account? This objection cannot be gotten rid of: the parties cannot be put in statu quo." So in Beed v. Bland-ford, 2 Younge & J. 278, where the master and part-owner of a vessel agreed to purchase the moiety of his partner, and having paid the purchase-money and received the title-deeds, which he deposited as a security with a third person, had the entire possession of the vessel given up to him, but his partner afterwards refused to execute a bill of sale, or refund the money; it was held, that an action for money had and received would not lie to recover the purchase-money, as the parties could not be restored to their original situation. Alexander, C. B., said: "In order to sustain an action in this form, it is necessary that the parties should, by the plaintiff's recovering the verdict, be placed in the same situation in which they originally were before the contract was entered into. The plaintiff has, by his intermediate occupation, derived the profits of the vessel; if he has not he might have done so; and it is impossible to say what the defendant might have made, had he, during the time, had any control over it Under these circumstances, it cannot be said that the situation of the parties has not been altered; and that, by the plaintiffs recovering in this action, their original position may be restored. Besides this, the defendant's title-deeds have been deposited by the plaintiff as a security for the money advanced to him. How could the defendant, in this respect, be restored to his original situation by this action? He is at the mercy of the defendant, for his title-deeds, and cannot recover them by any process in this cause. I think the objection is unanswerable, and that the rule for a nonsuit must be made absolute," And Vaughan, B., said: "The decision in Hunt v. Silk lays down a very clear and just rule in these cases: if the circumstances be such, that, by rescinding the contract the rights of neither party are injured, in that case, if one contracting party will not fulfil his part of the engagement, the other may rescind the contract, and maintain his action for money had and received, to recover back what he may have paid upon the faith of it." - And where one party elects to rescind a contract for fraud, he must return the consideration received before any right of action accrues; and it is not enough to notify the party defrauding, and call upon him to come and receive the goods. Norton v. Young, 8 Greenl. 90. But in the case of Masson v. Bovet, 1 Denio, 6, it was said, that though the general rule is, that the party who would bought that he cannot restore it, (aa) he cannot hold this and consider the contract as rescinded because of the non-performance of the residue; (b)but must do all that the contract obliges him to do, and seek his remedy in damages.1 But where one party has gained an advantage over another by fraud, the rule that the parties cannot be restored to their original condition, will not prevent the defrauded party from rescinding the contract; at least, will not in equity. (bb)