¶1The stipulation made and signed by the parties showed that the contract was rescinded. This presumptively meant a mutual rescission, and, in the absence of evidence rebutting the presumption, justified the finding that the rescission was by mutual agreement. This being so, although the contract was not strictly one for the exchange of real estate, the plaintiff became entitled to recover back what he had paid on account of the contract and the defendant could not maintain recoupment. There cannot be a rescission in part and an affirmance in part. The learned judge below was therefore right in the determination made by him.
¶2The judgment must be affirmed with costs.