BEAN, J.
1. It is also contended on behalf of defendant that the reply is a departure from the com[464]*464plaint and therefore the defendant’s motion for judgment should have been allowed. The matter as presented practically involves but one question,, whether or not the plaintiff is entitled to recover upon the facts as alleged by him and as found by the trial court. It is a well-settled rule of law that when a vendor abandons his contract to sell, the vendee in his choice of remedies may elect to rescind the contract and maintain an action at law to recover what he has paid thereon, as money had and received: 27 Cyc. 867, 868; Graham v. Merchant, 43 Or. 294, 304 (72 Pac. 1088); Maffet v. Oregon & California Railroad Co., 46 Or. 443, 457, 458 (80 Pac. 489).
2, 3. Where a contract of sale like the one in question provides for the payment of the purchase price in installments and stipulates that if any installment shall not be paid when due, the vendor shall have the right to declare forfeited all payments which have been made; the acceptance of a payment by the vendor after the vendee is in default is an election to consider the contract still in force. The acceptance by the defendant of the payments aggregating $68 after the $100 payment was due on May 5, 1915, was such an election, and while the plaintiff was in default under the waiver of the right to declare a forfeiture, the defendant vendor had no right to forfeit except after notice and after allowing plaintiff the vendee a reasonable time within which to comply with the terms of the contract: Graham v. Merchant, 43 Or. 294 (72 Pac. 1088).
4. When the defendant wrongfully attempted to abrogate and rescind the contract, the plaintiff had the right to assent to such rescission, thereby accomplishing the same by mutual consent: 2 Parsons on Contracts, § 678; 13 C. J., § 624, p. 601; Woodard v. [465]*465Willamette Valley Irrigated Land Co., 89 Or. 10 (173 Pac. 262).
5-7. The plaintiff and defendant both having consented to a rescission of the contract, neither can base a claim thereon except in so far as is necessary to the restoration of the status quo. It is the rule that when a contract of sale has been rescinded by the mutual assent and agreement of the parties, the contract is at an end, and in the absence of an agreement to the contrary, the vendee not being at fault may recover back the money paid on his contract: 2 Black on Rescission, 535; 2 Warvelle on Vendors, § 826; 13 C. J., § 627, p. 602. While the plaintiff by his reply sets forth the contract made between the parties and alleges that the defendant wrongfully rescinded the same, he does this in explanation of the facts alleged in the answer, and does not base his claim upon the contract, but alleges facts showing that it has been terminated and treats it as at an end, and asserts his claim for the amount paid thereon as money had and received which is in consonance with the above authorities. Therefore, the reply does not constitute a departure from the complaint: See Mayes v. Stephens, 38 Or. 512, 514 (63 Pac. 760, 64 Pac. 319); Crown Cycle Co. v. Brown, 39 Or. 285 (64 Pac. 451). Upon the facts stated in his pleadings and as found by the trial court, the plaintiff is entitled to recover.
Finding no error in the record, the judgment of the lower court is affirmed.
Affirmed. Rehearing Denied.
McBride, C. J., and Johns and Olson, JJ., concur. Free access — add to your briefcase to read the full text and ask questions with AI