(after stating the case). The replication is not such a departure from the complaint as to warrant the action of the Court in making this sudden and final determination of the cause. The replication was not essential to its further progress, unless required by the Court, since only matters in avoidance are brought forward in the answer. The Code, §248.
The pleadings present this case: The plaintiff demands specific performance of a contract made in the intestate’s life-time. The defendants admit that it was made as mentioned in the complaint, and say that it was afterwards rescinded and annulled, and this acquiesced in for many years as a disposition of the original claim. The plaintiff says it is true that the plaintiff and the testator did come to an agreement for a rescission of the contract, but it was on the terms of the exoneration of the intestate from the obligations and the payment to him of the value of the improvements put upon the lot, which he estimates at $650; and in this the testator has failed to comply with the conditions of the rescission. The plaintiff acquiesces in this, and demands payment of said sum.
Assuming, as the demurrer does, the unfulfilled terms of the contract to rescind on the part of the vendor, it cannot, be enforced as such against the vendee of the plaintiff, who has succeeded to his rights, and hence does not constitute a bar to the action against the will of the other contracting party. But the plaintiff may waive the delay and take the money to be paid in reimbursement of the expenditure put upon the premises, and the offer to do this is the *418substance of the replication. It is but the upholding of the controversy, its identity remaining, and if the demurrer was properly sustained, the effect would be to strike it out of the pleadings and leave the parties to proceed upon the complaint and answer as if the replication had not been filed, it perhaps furnishing evidence upon the trial of issues that may be formed. The new matter ip avoidance would then require proof in their support from the defendants.
But we think there is error in sustaining the demurrer, and that the replication does strike directly at the defence in averring conditions to the rescission, not complied with, and which render it ineffectual as an -obstruction to the remedy. Nor does the demand for the money, which may be considered but a proposition to abide by that agreement, essentially change the nature and legal effect of the pleading.
We, of course, express no opinion of the effect of the delay in the assertion of the claim, while, meantime, large expenditures were made by the testator, if true, in denying the relief sought. But for the error assigned the judgment must be reversed, and the cause left to proceed in the Court below.
Error. Reversed.