FOSTER v. BARTLETT

A depositor of money with another, who agrees, but neglects or refuses, to pay it to a third person, may, at his election, recover damages for the breach of the agreement, or treat the contract as rescinded, and recover the money.

CARPENTER, J.

The plaintiff had his election to bring an action on the contract to recover damages for the breach of it, or to treat it as rescinded and recover the money as received to his use. Stevens v. Cushing, 1 N.H. 18; Drew v. Claggett, 39 N.H. 431, 433. The defendant's payment of $200 affords no objection to the plaintiff's pursuing the last named course. The defendant is not injured by the rescission. Notwithstanding his partial performance of his agreement, he is restored to the situation he occupied before the contract was made. Luey v. Bundy, 9 N.H. 298, 302, 303; King v. Hutchins, 28 N.H. 561, 573.

Judgment on the verdict.

STANLEY. J., did not sit: the others concurred.