If, when the plaintiff demanded payment of the balance due and payment was refused, nothing more had been said or done, the defendant's right to the possession of the horse would thereupon have terminated. All that was said and done at the time of this conversation is to be considered in determining what binding understanding was reached by the parties.

The defendant had the right to withdraw his refusal to pay the balance of the purchase-money before his refusal was acted upon. Instead of insisting upon that right, he began negotiations which resulted in a rescission of the original contract and a new agreement, by which he was released from further payment, and by which the plaintiff was entitled to the return of the horse upon refunding the money which had been paid towards the purchase. The new agreement was a compromise of the controversy as to their respective legal rights in the horse. The plaintiff's intent, that the defendant should understand that the original contract was rescinded, is equivalent to an understanding on his part that it was rescinded. His acceptance of the defendant's proposition to rescind was inconsistent with his purpose to insist upon recovering the possession which he might have claimed by virtue of the demand and refusal. As he could not stand in both positions, the defendant was warranted in understanding that the original contract was rescinded.

The defendant is entitled to judgment for thirty dollars damages, with interest from the date of the writ and costs.

Case discharged.

CLARK, J., did not sit: the others concurred. *Page 440