Weil

The decision of this case depends upon the construction of a portion of one of the agreements annexed to the complaint, which reads as follows :

The effect of a rescission would have been to restore the status quo ; the party of the first part would have been entitled to the possession of the premises, the party of the second part to a restoration of the moneys he had paid.

It is apparent that the words “ to rescind ” are not employed in their usual or proper sense, because they are followed by a statement that the party of the first part shall retain the moneys paid. In its legal effect, the stipulation is for the benefit of the party of the second part. If the stipulation were not in the agreement, the plaintiff would succeed to the right to reenter immediately on the failure of the second party to make a payment—subject, of course, to the right of the party of the second part to a specific performance, no inexcusable delay occurring. This right to specific performance might continue after the expiration of the period named, the only effect of the stipulation in respect to that matter being that it constituted an agreement that time should not he considered of the essence of…