BEAN, J. —
The principal assignments of error are: That the court erred in submitting to the jury the counterclaim of defendant; that after plaintiff rescinded the contract defendant acquiesced in such rescission and thereby rendered the same mutual; and that the Circuit Court erred in giving the following instructions to the jury:
“If you find from the evidence that plaintiff’s rescission of contract was acquiesced in, provided rescission has been proven, by any conduct or acts of defendant, then I instruct you that plaintiff is entitled to recover the amount he has put into said property, as the evidence presents that view, if at all, to you. ’ ’
Also: “I further instruct you that defendant cannot recover rent from plaintiff for the time that plaintiff occupied s$id premises upon any other theory than that said contract was terminated. * * ”
Upon the trial defendant’s counsel stated that defendant waived its counterclaim and, as stated in their brief, “maintained that the counterclaim was in the nature of an offset to be set off against the value of the improvements,” and defendant introduced evidence as to the reasonable value .of plaintiff’s occupancy of the land. The plaintiff introduced in evidence defendant’s original answer, counterclaiming for rents and profits amounting to $170 for the purpose of showing that defendant assented to the rescis[15]*15sion. It should be stated that the sale contract made no provision for the payment of rent by the buyer under any circumstances.
1. As we view this case, the question of mutual rescission of the contract to purchase is the determinative one. It will be observed that in its two separate answers the defendant by appropriate allegations demanded a recovery from plaintiff of the sum of $170 as the reasonable value of the use of the premises during the time they were occupied by him under the terms of the sale contract. Such a recovery could not be had under any other theory than that the contract had been terminated. There is no claim made on behalf of defendant that it attempted to abrogate the agreement in accordance with the terms thereof or in any other manner; hence, it necessarily follows that the defendant by treating the contract as at an end and demanding rent for the property, thus recognizing the purchaser as a tenant, assented to the rescission asserted by plaintiff. This would be so although the plaintiff might be wrong in his contention to rescind the contract.
2. Mr. Parson in his work on Contracts, vol. 2, Section 678, states the rule thus:
“If either party, without right claims to rescind the contract, the other party need not object, and if he permit it to be rescinded, it will be done by mutual consent. ’ ’
See also: 13 C. J., § 624, p. 601; McKenna v. McKenna, 118 Ill. App. 240; Ralya v. Atkins, 157 Ind. 331 (61 N. E. 726); Moline Jewelry Co. v. Crew, 171 Ala. 415 (55 South. 144); Kingman Colony Irr. Co. v. Payne, 78 Or. 238 (152 Pac. 891). Each party having consented to a rescission of the contract (Hobbs v. Columbia Falls Brick Co., 157 Mass. 109 [16]*16(31 N. E. 756), neither can base a claim on snch contract except in so far as is necessary to the restoration of the status quo. As a general rule, when the contract for the sale of land has been rescinded by the mutual assent and agreement of the parties, the contract is at an end and there being no agreement to the contrary, the vendee, not being at fault, may recover back the money paid on his contracts: 2 Black on Rescission, § 535; 2 Warvelle on Vendors, §‘826; 13 C. J., § 627, p. 602; 39 Cyc. 2029; Vider v. Ferguson, 88 Ill. App. 136, 150; Bannister v. Read, 1 Gil. (6 Ill.) 100; Bryson v. Crawford, 68 Ill. 362; Prentice v. Erskine, 164 Cal. 446 (129 Pac. 585); Cummings v. Rogers, 36 Minn. 317 (30 N. W. 892); Maffet v. Oregon & Cal. R. Co., 46 Or. 443, 457 (80 Pac. 489). At page 457 of the opinion in the last-named case, Mr. Chief Justice Wolverton quotes the following from Glock v. Howard & W. Colony Co., 123 Cal. 1, 10 (55 Pac. 713, 69 Am. St. Rep. 17, 43 L. R. A. 199):
“There have been many cases before this court involving the rights of parties to agreements for the sale and purchase of real estate, in which it has been held that, after the parties have rescinded the agreement or mutually agreed to abandon, the vendee may recover the money which he paid in part performance of his contract” — citing cases.
The general rule in regard to restoration of the status quo is stated to the same effect in 6 R. C. L., p. 936, § 316.
3. The principle involved as to the right of Woodard, the vendee, to recover the money paid upon his contract to purchase when the vendor company abandoned its contract is settled by the opinion of this court written by Mr. Justice Moore in Graham v. Merchant, 43 Or. 294, 304 (72 Pac. 1088).
[17]*17“When a vendor abandons his. contract to convey, the vendee, in his choice of remedies, may elect to rescind the contract, and thereupon maintain an action at law to recover what he has paid thereon, as money had and received: Lyon v. Annable, 4 Conn. 350; McKinnon v. Vollmar, 75 Wis. 82 (43 N. W. 800, 17 Am. St. Rep. 178, 6 L. R. A. 121); Glock v. Howard & W. Colony Co., 123 Cal. 1 (55 Pac. 713, 69 Am. St. Rep. 17, 43L. R. A. 199).”
In Mitchell v. Hughes, 80 Or. 574, 584, 585 (157 Pac. 965), Mr. Justice McBride hot only cites with approval the case of Graham v. Merchant, 43 Or. 294 (72 Pac. 1088), but approves the following text from 39 Cyc. page 1354:
“Where one of the parties has abandoned the contract, the other thereupon has a choice of remedies. He may stand upon his contract, refusing assent to his adversary’s attempt to rescind it, and sue for a breach, or, in a proper case, for a specific performance, or he may acquiesce in the abandonment and treat the contract as rescinded, and thus effect a dissolution ■of the contract by mutual and concurring assent of both parties. He cannot, however, treat the contract as abandoned by the other party and at the same time enforce its obligation.”
4, 5. Eescission by the parties of a contract to convey contemplates not only destruction of the contract, but also restoration of the parties to their former estate or situation: Miles v. Hemenway, 59 Or. 318, 338 (111 Pac. 696, 117 Pac. 273). The waiver of the counterclaim and the attempt to convert the same into a recoupment by defendant was ineffectual as a revival of the contract of sale, as after a contract has been rescinded, it can be revived only by the mutual assent of the contracting parties. It matters not what we denominate defendant’s demand for rent. The defendant in this case could not alone apply the [18]*18pulmotor so as to restore the life of the contract: 13 C. J., § 627, p. 603; 6 R. C. L., § 315, p. 932; Dixon-Hanson Co. v. Svoboda, 161 Ill. App. 410.
The charge to the jury upon this phase of the case was well within the law.
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BEAN, J. —
The principal assignments of error are: That the court erred in submitting to the jury the counterclaim of defendant; that after plaintiff rescinded the contract defendant acquiesced in such rescission and thereby rendered the same mutual; and that the Circuit Court erred in giving the following instructions to the jury:
“If you find from the evidence that plaintiff’s rescission of contract was acquiesced in, provided rescission has been proven, by any conduct or acts of defendant, then I instruct you that plaintiff is entitled to recover the amount he has put into said property, as the evidence presents that view, if at all, to you. ’ ’
Also: “I further instruct you that defendant cannot recover rent from plaintiff for the time that plaintiff occupied s$id premises upon any other theory than that said contract was terminated. * * ”
Upon the trial defendant’s counsel stated that defendant waived its counterclaim and, as stated in their brief, “maintained that the counterclaim was in the nature of an offset to be set off against the value of the improvements,” and defendant introduced evidence as to the reasonable value .of plaintiff’s occupancy of the land. The plaintiff introduced in evidence defendant’s original answer, counterclaiming for rents and profits amounting to $170 for the purpose of showing that defendant assented to the rescis[15]*15sion. It should be stated that the sale contract made no provision for the payment of rent by the buyer under any circumstances.
1. As we view this case, the question of mutual rescission of the contract to purchase is the determinative one. It will be observed that in its two separate answers the defendant by appropriate allegations demanded a recovery from plaintiff of the sum of $170 as the reasonable value of the use of the premises during the time they were occupied by him under the terms of the sale contract. Such a recovery could not be had under any other theory than that the contract had been terminated. There is no claim made on behalf of defendant that it attempted to abrogate the agreement in accordance with the terms thereof or in any other manner; hence, it necessarily follows that the defendant by treating the contract as at an end and demanding rent for the property, thus recognizing the purchaser as a tenant, assented to the rescission asserted by plaintiff. This would be so although the plaintiff might be wrong in his contention to rescind the contract.
2. Mr. Parson in his work on Contracts, vol. 2, Section 678, states the rule thus:
“If either party, without right claims to rescind the contract, the other party need not object, and if he permit it to be rescinded, it will be done by mutual consent. ’ ’
See also: 13 C. J., § 624, p. 601; McKenna v. McKenna, 118 Ill. App. 240; Ralya v. Atkins, 157 Ind. 331 (61 N. E. 726); Moline Jewelry Co. v. Crew, 171 Ala. 415 (55 South. 144); Kingman Colony Irr. Co. v. Payne, 78 Or. 238 (152 Pac. 891). Each party having consented to a rescission of the contract (Hobbs v. Columbia Falls Brick Co., 157 Mass. 109 [16]*16(31 N. E. 756), neither can base a claim on snch contract except in so far as is necessary to the restoration of the status quo. As a general rule, when the contract for the sale of land has been rescinded by the mutual assent and agreement of the parties, the contract is at an end and there being no agreement to the contrary, the vendee, not being at fault, may recover back the money paid on his contracts: 2 Black on Rescission, § 535; 2 Warvelle on Vendors, §‘826; 13 C. J., § 627, p. 602; 39 Cyc. 2029; Vider v. Ferguson, 88 Ill. App. 136, 150; Bannister v. Read, 1 Gil. (6 Ill.) 100; Bryson v. Crawford, 68 Ill. 362; Prentice v. Erskine, 164 Cal. 446 (129 Pac. 585); Cummings v. Rogers, 36 Minn. 317 (30 N. W. 892); Maffet v. Oregon & Cal. R. Co., 46 Or. 443, 457 (80 Pac. 489). At page 457 of the opinion in the last-named case, Mr. Chief Justice Wolverton quotes the following from Glock v. Howard & W. Colony Co., 123 Cal. 1, 10 (55 Pac. 713, 69 Am. St. Rep. 17, 43 L. R. A. 199):
“There have been many cases before this court involving the rights of parties to agreements for the sale and purchase of real estate, in which it has been held that, after the parties have rescinded the agreement or mutually agreed to abandon, the vendee may recover the money which he paid in part performance of his contract” — citing cases.
The general rule in regard to restoration of the status quo is stated to the same effect in 6 R. C. L., p. 936, § 316.
3. The principle involved as to the right of Woodard, the vendee, to recover the money paid upon his contract to purchase when the vendor company abandoned its contract is settled by the opinion of this court written by Mr. Justice Moore in Graham v. Merchant, 43 Or. 294, 304 (72 Pac. 1088).
[17]*17“When a vendor abandons his. contract to convey, the vendee, in his choice of remedies, may elect to rescind the contract, and thereupon maintain an action at law to recover what he has paid thereon, as money had and received: Lyon v. Annable, 4 Conn. 350; McKinnon v. Vollmar, 75 Wis. 82 (43 N. W. 800, 17 Am. St. Rep. 178, 6 L. R. A. 121); Glock v. Howard & W. Colony Co., 123 Cal. 1 (55 Pac. 713, 69 Am. St. Rep. 17, 43L. R. A. 199).”
In Mitchell v. Hughes, 80 Or. 574, 584, 585 (157 Pac. 965), Mr. Justice McBride hot only cites with approval the case of Graham v. Merchant, 43 Or. 294 (72 Pac. 1088), but approves the following text from 39 Cyc. page 1354:
“Where one of the parties has abandoned the contract, the other thereupon has a choice of remedies. He may stand upon his contract, refusing assent to his adversary’s attempt to rescind it, and sue for a breach, or, in a proper case, for a specific performance, or he may acquiesce in the abandonment and treat the contract as rescinded, and thus effect a dissolution ■of the contract by mutual and concurring assent of both parties. He cannot, however, treat the contract as abandoned by the other party and at the same time enforce its obligation.”
4, 5. Eescission by the parties of a contract to convey contemplates not only destruction of the contract, but also restoration of the parties to their former estate or situation: Miles v. Hemenway, 59 Or. 318, 338 (111 Pac. 696, 117 Pac. 273). The waiver of the counterclaim and the attempt to convert the same into a recoupment by defendant was ineffectual as a revival of the contract of sale, as after a contract has been rescinded, it can be revived only by the mutual assent of the contracting parties. It matters not what we denominate defendant’s demand for rent. The defendant in this case could not alone apply the [18]*18pulmotor so as to restore the life of the contract: 13 C. J., § 627, p. 603; 6 R. C. L., § 315, p. 932; Dixon-Hanson Co. v. Svoboda, 161 Ill. App. 410.
The charge to the jury upon this phase of the case was well within the law. The practical effect of the instructions quoted and complained of was to require the jury, if they found in favor of plaintiff as to the other facts of the case which were fairly proved, to find for plaintiff upon this point, that is, that the contract had been rescinded by mutual assent. There was no error in this part of the charge. As we suggested, this question being the turning point in the case, it renders it of but little avail to consider any of the other questions argued. It was fairly shown and the jury found that the plaintiff had complied with the terms of the contract on his part, and that the defendant failed to furnish plaintiff with water for irrigation during the season of 1914 according to its agreement, and that his crops suffered for want thereof. There is no question raised affecting the finding of the jury as to the value of the improvements made by plaintiff on the land. It is alleged and the evidence admitted tended to show that defendant failed to keep its oral agreement made during the negotiations leading up to the sale contract and not included therein, to equip a cannery and furnish a market for the products raised by the plaintiff on the land. Assuming without deciding that the admission of such evidence for the purpose of showing a further breach of the contract by defendant was error as varying the terms of the written contract, yet as the defendant assented to the rescission of the agreement we cannot see how such evidence could possibly change the result of the deliberations of the jury. It would serve no good purpose if error should be de[19]*19dared to remand this canse for a retrial of an issue which would not affect the decision of the case. The evidence is all contained in the record. Applying Article VII, Section 3, of the Constitution, after a consideration of all the matters contained in the record, we are of the opinion that the judgment appealed from was correct. We find no reversible error in the case and the judgment of the lower court is therefore affirmed. Affirmed.
McBride, C. J., Moore and Benson, JJ., concur.