Mason, Ch. J.
The errors assigned in this cause are, that upon the evidence and pleadings in the case the court erred in rendering judgment for the defendant in error; that the judgment is contrary to law; that the judgment should have been for the plaintiff, and that the court erred in overruling the plaintiff’s motion for a new trial. The facts of the case are as follows : On the 19th of April, 1865, John I. Redick sold a lot situated in Omaha city, to Sarah Eaton, wife of Emerson H. Eaton, for the consideration of sixteen hundred and fifty dollars. Eaton paid on said purchase four hundred dollars, and the balance was to be paid in four equal payments in three, six, nine and twelve months. At the same time Redick executed a deed for the lot to Mrs. Eaton. By mistake or design, on the part of Emerson H. Eaton, only three notes for the deferred payments were delivered to Redick. He deposited the notes which were delivered to him and the deed for the lot with Kountze & Brothers, of Omaha, to be. delivered to Eaton when all the purchase money was paid. No payments were made on the lot after the first, although the same were often requested. On the 13th of January, 1866, Redick sold the lot to Mrs. More for the sum of twenty-two hundred dollars. This action was brought by Eaton and wife to recover the amount paid on the lot and interest. The case was tried before the court below, and Eaton and wife recovered a judgment for the sum claimed by them.
The amount which Eaton and wife were to pay for the lot was sixteen hundred and fifty dollars; the amount *308which Re dick received on the re-sale was twenty-two hundred dollars. The sale to Eaton and wife was made April 19, 1865, and the re-sale to Mrs. More on the 13th of January, 1866. The failure of Eaton and wife to comply with their contract, and make the payments at the time agreed, did not terminate the special contract, but loft it optional with the other party to do so. He exercised this option by the sale to Mrs. More, putting it beyond his power to fulfill his contract with Eaton, and this, too, before the last payment had fallen due. Then, on the failure of Eaton to pay, Redick chose to rescind the contract and put an end to the same, so that when this action was brought there was' no subsisting contract between the parties on which the liioney sought to be recovered was paid. It may be admitted that if the special contact on which the money was paid was a subsisting contract between the parties, and the defendant Redick had at all times performed his part of the contract, or stood ready to do so, and at the present time insisted on performance, and the failure to perform was exclusively the fault or neglect of Eaton and his wife, they could not recover. But that is not the case. The plaintiffs failed to fulfill their contract, and the defendant chose to rescind the same, and the plaintiffs acquiesced in the choice of the defendant. Then there was no subsisting contract between the parties uppn which the money sought to be recovered was paid. Redick admits, in his answer, “ that when the first note became due, he called upon Kountze & Brothers, with whom he had left the notes for collection, and directed them to deliver back to said Eaton his notes, leaving them for that purpose.” He is bound by this admission in his answer, and it is decisive of this case. When there is no contract subsisting between the parties,, but the same has been put an end to by the election or refusal of the defendant to perform, the other party may recover back any money paid in part perform*309anee, with interest from the date of the rescission of the contract. — Raymond v. Beamand, 12 Johns. 274; Gillet v. Clemens, 5 Ib. 85; Green v. Green, 9 Cow. 46" court="N.Y. Sup. Ct." date_filed="1828-05-15" href="https://app.midpage.ai/document/green-v-green-5465107?utm_source=webapp" opinion_id="5465107">9 Cow. 46 ; Chitty on Contracts, 741; Harris v. Bradley, 9 Ind. 168
. It may be stated, as a principle of the common law, that . when money has been paid on a special contract, an action for money had and received to recover back the same, could not be maintained if it has been in part performed, and the plaintiff derived benefit from the same. Chitty on Contracts, 5th ed. 627, and eases there cited; 1 Chitty Pleadings, 9th ed. 355.
The case referred to in 18 Johns., Ketchum v. Everston, relied upon- by the plaintiff in error, is not applicable to this case; neither is it at variance with the principles here laid down. This determines the case. The judgment must be affirmed with costs.
Judgment affirmed.