The only question made in regard to the claim upon the'part of the plaintiff is, whether the undertaking of the- defendant was original, or collateral. This may readily be determined by the inquiry, whether the plaintiff ever gave' credit to Eaton, so that he became liable. We think he did not. We think it was a matter well understood by the three, that the credit was given solely to the defendant, and that he was originally liable. The judgment upon the report of the auditor was correct.
There is no controversy, but that the matter claimed in the first plea in bar is one upon which the defendant is entitled to insist in this action.
But the claim set up in the second plea seems to us, upon the facts found, to be one, which the defendant cannot maintain. In order to entitle the plaintiff to claim any benefit of the bond to convey the land, he was to pay the note according to its tenor. The note was payable in two years, and became due October 3, 1840, and before the action of ejectment was brought by the defendant. The plaintiff having failed to perform the contract on his part, this gave the defendant, in law, an election to rescind the contract in tolo, and reclaim the land, or to collect the price; but he could not do both ; and haying made his election, he is bound by it. The defendant, by bringing the action of ejectment and taking possession of the land, effectually rescinded the contract. And a contract once rescinded cannot be restored, except by consent of both parties. If the defendant chose to pursue the plaintiff for the price of the land, he should have done that; or he might possibly have claimed á lien upon the land for the purchase money, and still have collected the price of the land; but when he takes possession of .the land, as owner, all claim upon the note is gone.
Judgment reversed, and case remanded for a new trial upon the second plea in offset.