If the contract set forth in the declaration had been rescinded by mutual consent, or if the defendant had done any act by which it became impossible to perform it, an action would lie for the consideration paid, and perhaps for the labor and services performed, by the plaintiff, pursuant to the contract; and we do not see that the statute of frauds would interpose an obstacle.
But the case reported does not show such a state of * things. On the contrary, it shows that the plaintiff alone claims to rescind the contract, without offering to perform what he had undertaken on his part. The deed was to be given on payment of a hundred dollars by the plaintiff and his father. That sum has not been paid or tendered. An offer by the father to settle, and a declaration that he would pay. the balance, do not amount to a tender; for it does not appear that there were any accounts between the parties, necessarily connected with this contract. The motion to set aside the nonsuit is overruled,
[Smith vs. Burnam, 3 Sumner’s R. 435.— Shepherd vs. Spauldings 4 Met. 416 — Ed.]