3 Thus, for example, when a contract for the sale of a chattel is broken by the failure of the vendor to deliver it, and the purchaser has paid the price in advance, he may elect to rescind the contract and recover the money advanced, with interest. So, where the vendee under an unexecuted contract for the sale of land has paid the whole or a part of the purchase money, and the vendor fails to complete his engagement, the vendee may disaffirm the contract and bring an action for money had and received. And where a grantor orally agreed to convey land and put the grantee in possession, the latter is entitled to rescind the contract because of the failure of the grantor to put him in possession. And in a contract for the sale of first-rate land, to be chosen by the purchaser out of several tracts owned by the vendor, the vendor is the agent to do the first act, by exhibiting the lands from which the choice is to be made, and on his failure to do this, the contract may be rescinded." Conversely, if a purchaser of real estate fails to comply with the terms of the contract under which he obtained possession, the vendor is at liberty to treat the contract as rescinded, and to regain the possession by ejectment.' In Louisiana, there is a special statutory rule as to contracts of 5 Wilkinson, 18 Ind. 365; Edmonds v. Cochran, 12 Iowa, 488; Lytle v. Breckenridge, 3 J. J. Marsh. (Ky.) 663; Church of St. Louis v. Kirwan, 9 La. Ann. 31; Dodge v. Greeley, 31 Me. 343; Moore v. Curry, 112 Mass. 13; Seymour v. Detroit Copper Mills, 56 Mich. 117, 22 N. W. 317, 23 N. W. 186; City of Grand Haven v. Grand Haven Waterworks, 99 Mich. 106, 57 N. W. 1075; Townsend v. Hurst, 37 Miss. 679; Pierce v. Duncan, 22 N. H. 18; Weaver v. Bentley, 1 Caines (N. Y.) 47; Hadden v. Dimick, 13 Abb. Prac. N. S. (N. Y.) 135; Steiger v. London, 141 App. Div. 382, 126 N. Y. Supp. 256; Dula v. Cowles, 52 N. C. 290, 75 Am. Dec. 463; Enderlien v. Kulaas, 25 N. D. 385, 141 N. W. 511; Heller v. Charleston Phosphate Co., 28 S. C. 224, 5 S. E. 611; School District No. 1 v. Hayne, 46 Wis. 511, 1 N. W. 170. 3 Dobenspeck v. Armel, 11 Ind. 31; Phillips v. Bruce, Anth. N. P. (N. Y.) 89. 4 Seibel v. Purchase (C. C.) 134 Fed. 484; Scarborough v. Arrant, 25 Tex. 129; Smith v. Lamb, 26 Ill. 396, 79 Am. Dec. 381. But see Shoup v. Cook, Smith (Ind.) 29. 5 Biewer v. Mueller, 254 Ill. 315, 98 N. E. 548. 6 Lynch v. Johnson, 2 Litt. (Ky.) 98. 7 Burnett v. Caldwell, 9 Wall. 290, 19 L. Ed. 712; Waters v. Pearson, 163 Iowa, 391, 144 N. W. 1026; Drew v. Smith, 7 Minn. 301 (Gil. 231). sale, as follows: "If a promise to sell has been made with the giving of earnest, each of the contracting parties is at liberty to recede from the promise; to wit, he who has given the earnest, by forfeiting it; and he who has received it, by returning the double." 8 But this rule is by no means limited to contracts for the sale of real or personal property, but it extends to all forms of contract which involve reciprocal or concurrent action by the two parties. For instance, a person agreed to teach another the art of telegraphy until he should become proficient, but after receiving full payment, he abandoned the contract and would not give the stipulated instruction; and it was held that the student could treat the action as a rescission and sue for the amount paid." So, the breach of an agreement to maintain and care for a man and his wife relieves them from the performance of their part of the agreement to give the other party the benefit of an insurance on the man's life.10 And where defendant contracted with plaintiff to keep cut a supply of logs sufficient to keep employed plaintiff's teams until defendant's timber was all hauled, his failure to do so will be a violation of the contract justifying its abandonment by the plaintiff.11 On similar principles, under a contract for the transportation of a quantity of iron by the defendant for the plaintiff, the plaintiff failed to deliver the iron to the defendant within the time specified in the contract, and it was held that this justified the defendant in rescinding or abandoning the contract.12 8 Rev. Civ. Code La., art. 2463. See Legier v. Braughn, 123 La. 463, 49 South. 22. An agreement for the sale of real estate, contemplating the passing of property by an act to be executed at a later date, and which in other respects contains the elements essential to a sale, is a promise of sale, and when made with the giving of earnest, may be receded from by the party receiving the earnest by returning the double. Smith v. Hussey, 119 La. 32, 43 South. 902. > Timmerman v. Stanley, 123 Ga. 850, 51 S. E. 760, 1 L. R. A. (N. S.) 379. 10 Ptacek v. Pisa, 231 Ill. 522, 83 N. E. 221, 14 L. R. A. (N. S.) 537; Young v. Young, 157 Wis. 424, 147 N. W. 361. 11 Fletcher v. Verser, 79 Ark. 271, 96 S. W. 384. 12 Farwell v. Davis, 66 Barb. (N. Y.) 73. Where one of the parties to a contract repudiates it, that is, either expressly or tacitly refuses to go on with it or to perform his part of it or to recognize it as binding on him, this will give the other party (not being in default) the right to rescind that contract and to be restored to his former status as to anything he may have already done under it.13 And continued non-action by a party, where the contract requires him to act periodically or at stated intervals, may be evidence of his repudiation of the contract, as, for instance, where he has bound himself to order from the other party, and to receive and pay for, a stated quantity of a given commodity at regular intervals, and fails to do what is required of him.1 But the total repudiation of a contract cannot be predicated on the act of a party in merely disputing the quality, grade, weight, etc., of commodities delivered in pursuance of it.15 Similar to this is the case of the abandonment of a contract, that is, the act of one who, having entered upon the performance of the contract, afterwards fails or neglects to perform such further acts as the contract requires him to do. If such abandonment is complete and is continued for such a length of time as to evince a purpose not to resume or complete the contract, it furnishes ground for rescission by the other party.16 Still another case of non-performance justifying rescission is that in which a party, having gained possession or control of the subject-matter of the contract, employs it in a different manner, or perverts it to a different use, than that contracted for. Thus, if defendant contracts to loan to plaintiff funds with which to make certain improvements, plaintiff's misappropriation of funds so advanced, by diverting them to uses other than those contemplated by the contract, constitutes such a breach of it as to justify the defendant in rescinding and refusing further performance.17 13 Alpena Portland Cement Co. v. Backus, 156 Fed. 944, 84 C. C. A. 444; Cook v. Hamilton County Com'rs, 6 McLean, 112, Fed. Cas. No. 3,157; Ballou v. Billings, 136 Mass. 307; Schwear v. Haupt, 49 Mo. 225. 14 Jung Brewing Co. v. Konrad, 137 Wis. 107, 118 N. W. 548. 15 Hartnett v. Baker, 4 Pennewill (Del.) 431, 56 Atl. 672. 16 Cringan v. Nicolson, 1 Hen. & M. (Va.) 429. 17 Bixby-Theisen Co. v. Evans, 174 Ala. 571, 57 South. 39. But see sale, as follows: "If a promise to sell has been made with the giving of earnest, each of the contracting parties is at liberty to recede from the promise; to wit, he who has given the earnest, by forfeiting it; and he who has received it, by returning the double." 8 But this rule is by no means limited to contracts for the sale of real or personal property, but it extends to all forms of contract which involve reciprocal or concurrent action by the two parties. For instance, a person agreed to teach another the art of telegraphy until he should become proficient, but after receiving full payment, he abandoned the contract and would not give the stipulated instruction; and it was held that the student could treat the action as a rescission and sue for the amount paid." So, the breach of an agreement to maintain and care for a man and his wife relieves them from the performance of their part of the agreement to give the other party the benefit of an insurance on the man's life.10 And where defendant contracted with plaintiff to keep cut a supply of logs sufficient to keep employed plaintiff's teams until defendant's timber was all hauled, his failure to do so will be a violation of the contract justifying its abandonment by the plaintiff.11 On similar principles, under a contract for the transportation of a quantity of iron by the defendant for the plaintiff, the plaintiff failed to deliver the iron to the defendant within the time specified in the contract, and it was held that this justified the defendant in rescinding or abandoning the contract.1 12 8 Rev. Civ. Code La., art. 2463. See Legier v. Braughn, 123 La. 463, 49 South. 22. An agreement for the sale of real estate, contemplating the passing of property by an act to be executed at a later date, and which in other respects contains the elements essential to a sale, is a promise of sale, and when made with the giving of earnest, may be receded from by the party receiving the earnest by returning the double. Smith v. Hussey, 119 La. 32, 43 South. 902. → Timmerman v. Stanley, 123 Ga. 850, 51 S. E. 760,-1 L. R. A. (N. S.) 379. 10 Ptacek v. Pisa, 231 Ill. 522, 83 N. E. 221, 14 L. R. A. (N. S.) 537; Young v. Young, 157 Wis. 424, 147 N. W. 361. 11 Fletcher v. Verser, 79 Ark. 271, 96 S. W. 384. 12 Farwell v. Davis, 66 Barb. (N. Y.) 73. Where one of the parties to a contract repudiates it, that 1s, either expressly or tacitly refuses to go on with it or to perform his part of it or to recognize it as binding on him, this will give the other party (not being in default) the right to rescind that contract and to be restored to his former status as to anything he may have already done under it.13 And continued non-action by a party, where the contract requires him to act periodically or at stated intervals, may be evidence of his repudiation of the contract, as, for instance, where he has bound himself to order from the other party, and to receive and pay for, a stated quantity of a given commodity at regular intervals, and fails to do what is required of him.1 But the total repudiation of a contract cannot be predicated on the act of a party in merely disputing the quality, grade, weight, etc., of commodities delivered in pursuance of it.15 Similar to this is the case of the abandonment of a contract, that is, the act of one who, having entered upon the performance of the contract, afterwards fails or neglects to perform such further acts as the contract requires him to do. If such abandonment is complete and is continued for such a length of time as to evince a purpose not to resume or complete the contract, it furnishes ground for rescission by the other party.18 Still another case of non-performance justifying rescission is that in which a party, having gained possession or control of the subject-matter of the contract, employs it in a different manner, or perverts it to a different use, than that contracted for. Thus, if defendant contracts to loan to plaintiff funds with which to make certain improvements, plaintiff's misappropriation of funds so advanced, by diverting them to uses other than those contemplated by the contract, constitutes such a breach of it as to justify the defendant in rescinding and refusing further performance.17 13 Alpena Portland Cement Co. v. Backus, 156 Fed. 944, 84 C. C. A. 444; Cook v. Hamilton County Com'rs, 6 McLean, 112, Fed. Cas. No. 3,157; Ballou v. Billings, 136 Mass. 307; Schwear v. Haupt, 49 Mo.. 225. 14 Jung Brewing Co. v. Konrad, 137 Wis. 107, 118 N. W. 548. 15 Hartnett v. Baker, 4 Pennewill (Del.) 431, 56 Atl. 672. 16 Cringan v. Nicolson, 1 Hen. & M. (Va.) 429. 17 Bixby-Theisen Co. v. Evans, 174 Ala. 571, 57 South. 39. But see |