By the Court, Allen J.
It is not material to inquire whether the plaintiff should not have sought his remedy by counting upon the special contract between the parties, rather than upon the common assumpsit. The objection to the form of the action, not having been taken upon the trial, cannot be made available at this time. (Underhill v. Pomeroy, 2 Hill, 603 ; S. C. in error, 7 Id. 388.) The money advanced by the plaintiff to the defendants, and to recover which this action was brought, was advanced on the special contract of the *35810th March, 1842, and in payment for lumber delivered, and to be delivered, by the defendants in pursuance of its terms. It was intended as a performance by the plaintiff of his agreement, to advance five or six thousand dollars to the defendants as they might want, and for which the defendants were to pay interest in their settlements. The money was not to be repaid upon request, as money, but was to be paid by the delivery of lumber under the contract. This was evidently the understanding of the parties, as evidenced by the receipts and memoranda made at the time, and given in evidence by the plaintiff. The plaintiff, therefore, to entitle himself to recover, was bound to show the contract at an end, either by a full performance thereof, by both parties, or by some act of the defendants, inconsistent with it, and disabling them from complying with its terms, or by a rescission by the mutual consent of all the parties. If the contract was ended, or the performance thereof prevented by the acts of the plaintiff, he could not sustain an action against the defendants, either upon the contract or for money advanced by him in part performance of it. (Ketch-um v. Evertson, 13 John. 359.) And if the plaintiff had fully performed, or offered to perform, the contract on his part, he could not maintain an action against the defendants, without showing a failure or inability to perform upon their part. (Fuller v. Hubbard, 6 Cowen, 13; S. C. 7 Id. 53.) The defendants would not be called upon to show a performance, but the plaintiff would be compelled to prove the non-performance. (Wheeler v. Broad, 12 John. 363.) In Green v. Green, (9 Cowen, 46,) the cases are reviewed by Savage, Ch. J., and the rule laid down, as abstracted by the reporter, that “ to warrant a recovery as for money had and received, paid under a special contract, a strict performance must be shown by the plaintiff, the same as if he had sued on the special contract itself; unless the contract has been expressly rescinded or impliedly so, as, by nothing having been done under it for a long time, or the party sought to be charged having acted inconsistent with it.”
There is no evidence in thé case tending to show that the
*359defendants have done any act inconsistent with the continuance or present validity of the contract, or disabling them from a full performance of its terms, or that the plaintiff having performed, or being ready to perform, on his part, the defendants have refused to perform on their part. And it is not claimed that there is any evidence that the contract has been expressly rescinded by the parties. The contract of 23d March, 1843, admitting it to be valid as a contract between the parties, (of which there is great doubt,) did not purport to rescind the first agreement or to vary its terms, except as to the lumber then actually delivered at Fish Creek landing. On the contrary, the first contract is referred to as then subsisting in full force, and under which further action was to be had by the parties. Indeed, the lumber then on hand was not absolutely withdrawn from its operation, but it was left optional with the plaintiff to sell it under the arrangement then proposed, or to retain it as so much lumber delivered upon the contract. But it is insisted that the referees inferred that the contract had been rescinded, from the fact that nothing had been done under it for a long space of time before the commencement of the suit. Doubtless a party may lose his right to enforce the specific performance of a contract by delay in the demand, and an apparent abandonment of his claim ; particularly if the situation of the parties has become changed in the mean time, and they may reasonably be presumed to have acted upon the faith of the abandonment of the contract. (Ballard v. Walker, 3 John. Cas. 60. 2 P. Wms. 82. Orby v. Trigg, 9 Mod. 2. Lady Lamborough’s case, cited by Savage, Ch. J., 9 Cowen 46.) But I have found no case in which the plaintiff has been allowed to recover, in an action for money had and received, for money advanced upon a contract, as upon a rescission of it presumed from mere delay, without showing some violation of the contract by the party sought to be charged. The great difficulty upon this branch of the plaintiff’s case, however, is that there is an entire want of evidence that the parties had not, up to the time of the trial, continued their transactions under the conract. The cessation of operations by the manu*360facture and delivery of lumber by the defendants, and the receipt thereof by the plaintiff under the agreement, was a fact to be proved by the plaintiff, and not to be disproved by the defendants, and was a fact material to the issue. (Wheeler v. Board, sup.) The presumption is, until the contrary is shown, that a contract is still in force, and that the parties continue to act under and abide by it. (Low v. Edmunston, 5 Iredell, 354.) But the plaintiff asks us to presume a fact, of which there is no evidence, and from that presumed fact, draw a legal inference that the contract was rescinded. This we cannot do, when all the facts proved are entirely consistent with a different conclusion, and with a state of facts which would furnish a good defence to the action. And if the referees, as was contended upon the argument, acted upon the presumption that the contract was rescinded by reason of the lapse of time between the last transaction under it and the commencement of the suit, or the time of trial, then they clearly erred in rejecting proof offered by the defendants, that the parties acted under it through the season of 1843. The time was material. A discreet man might well infer an abandonment of a contract by a cessation of operations, or non-claim under it for four years, when he would not do it after a like cessation or non-claim for three years. And the reasons of a non-user for the latter term may be susceptible of explanations, while the longer term would not be capable of a like satisfactory explanation. At all events, if the question was to be taken against the defendants by lapse of time, they were clearly entitled to reduce that term which was to count against them to the minimum, and to have the judgment of the referees upon the actual term during which operations had been suspended under the contract.
The report must be set aside, and a new trial granted ; costs to abide the event.