majority">STONE, C. J.

The agreement of December 6, 1883, between Belsher and Dicks, is an executory contract of sale and purchase of real estate, the purchase-money to be paid in five annual installments, the first to be paid December 1, 1884, and title to be made on complete payment. Dicks was to take immediate possession, and to pay the accruing taxes on the land purchased. The agreement contains this clause : “It is mutually agreed, that if on the 1st day of December, 1884, the said F. T. Dicks shall so choose, he may, in lieu of making the said' payment, pay the sum. of two hundred dollars as rent for 1884, *371the said F. T. Dicks then returning possession of said land to the said L. L. Belsher without the payment of any taxes thereon, and the place and improvements being returned in as good condition as now found, accidents of God excepted.” This, then, ■was a contract of purchase by Dicks, with the option reserved to him of converting it into a leasehold estate.— Collins v. Whigham, 58 Ala. 438; Wilkinson v. Roper, 74 Ala. 140. The contract was signed by both parties. The present suit was brought on said contract, and the breach alleged is in the following language: “ The defendant has failed, and though often requested so to do, still fails and refuses to comply with the following provisions thereof, to-wit: After having taken possession of said lands and improvements under said contract, and elected to pay rent for the year 1884, as therein provided, and paid said rent as stipulated therein, he has not returned the place and improvements in as good condition, accidents of God excepted, as it was when said contract was made, and when he took possession thereof, in this: That the dwelling house, kitchen and dining room and office, and an ice house and bath house, all of which were on the premises when the contract was made, and when he went into possession, were burned by fire during his tenancy during the year 1884; and the defendant, though requested so to do, has failed and refuses to rebuild said dwelling house and outhouses above mentioned, to the damage,” &c. There was a demurrer to the complaint, the point of which is, that by receiving rent, and receiving back the possession of the premises, the plaintiff had disabled himself to sue for the failure to return the place and improvements in the same condition as when received, the acts of God excepted. The demurrer was overruled. Defendant then pleaded the same facts in bar of the action. This plea, on motion of plaintiff, was stricken out by the court, because it was no answer to the complaint. These rulings, presenting substantially but one question, are the alleged errors complained of. It is not the law that the acceptance of the performance* of one service or duty when two are due, is an abandonment of all claim of damages for the service not performed. — Robinson v. Bullock, 66 Ala. 548. The plea being fatally defective in substance, the court did not err in striking it from the file, without putting the plaintiff to his demurrer. .

Affirmed.

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