¶1The opinion of the court was delivered by
¶2The object of this suit is to recover for a certain portion of advance money, as it is called, which had been received by the defendant under a certain written contract between Ford and the defendants, which is made a part of the bill of exceptions. It is not necessary to allude to the various provisions of this contract., In Buchnaster v. Mower et al., 21 Yt. 204, this same contract was| before the court, and it was there held, that the cloth, when manu-1 factored by Ford, became the sole property of the defendant, antf that Ford’s rights rested altogether in contract; and among those: rights the defendant assumed to pay to Ford one third of the money, which he should receive from the consignees, in advance, upon' the cloth which might be sent to them. Í
¶3The plaintiff’s claim was for one third of such advance mfoney. The court, among other things, told the jury, that if it appeared, that Ford had, previous to the call for the advance money, converted to his own use a portion of the defendant’s cloth, without his consent, it would be a breach of the contract on the part of Ford, anct would discharge the defendant from his liability to pay advance money to him under the contract. Under this instruction, if the jury found, that Ford had failed to deliver to the defendant any portion of the cloth manufactured by him, however small, but had converted it to his own use, the defendant would have been absolved from all liability to pay over any part of the advance money, which *380he might have received, whatever the sum may have been in his hands.
¶4If the charge of the court can be sustained, it must be upon the ground, that a breach of the contract on the part of Ford gave to the defendant a right to repudiate it. But it could not have that effect. The general rule of law is, that a contract cannot be rescinded by one party, for the default of the other, unless both parties can be placed in statu quo, as before the contract. In the present case the contract had been in part executed, and each party had received a partial benefit from the contract, and the parties could not be placed in statu quo. The agreement in this case must stand, and the defendant must perform his part of it; and if there has been a breach of the contract by the other party, he must seek a compensation in damages of such parly, by a cross action.
¶5Though it is probable the merits of the controversy did not turn upon this point in the charge, yet we cannot assume, upon this bill of exceptions, that this was not the ground, upon which the jury proceeded, in returning a verdict for the defendant. It might have been ; and as we think there was error in this part of the charge, '¡the judgment of the county court must be reversed.