Stoel, Ex'r, etc. vs. Flanders and wife. doctrine that upon the breach of an agreement to support, the injured party can proceed by action at once as though the agreement had not been made, and that upon such breach there is an entire forfeiture of the consideration for such support, and that such consideration can be recovered in a direct action for that purpose, is denied in Bogie v. Bogie, 41 Wis. 217. See, also, Bresnahan v. Bresnahan, 46 id. 385; Bishop v. Aldrich, 48 id. 619; Blake v. Blake, 56 id. 392. To avail herself of the right to have the contract rescinded and have the benefit of the mortgage security, after part performance, the plaintiff should have brought an equitable action setting up the contract for support and its breach, and praying for rescission of the agreement, an accounting between the parties, and the foreclosure of the mortgage and sale of the premises to satisfy the value of the support found due. See Van Trott v. Wiese, 36 Wis. 449; Gould v. Cayuga Co. Nat. Bank, 86 N. Y. 83; S. C. 99 id. 337. But even though the action had been brought in that form, still the court should not have decreed a rescission, because it would be impossible to place the parties in statu quo, and because complete compensation in damages could readily be given. One party cannot rescind a contract for a failure of the other party which is but partial, having had performance of a distinct part as a subsisting and executed consideration, but must seek his remedy in damages. 2 Parsons on Con. 697, note g; 2 Sutherland on Dam. 245, 246; Burge v. C. R. & M. R. Co. 32 Iowa, 101; Miller v. Cotten, 5 Ga. 341. Again, rescission should have been neither decreed nor allowed, because there was no breach of the contract for support. There was nothing in such contract to bind the appellants to furnish to Lewis or Mary Royce a home with them. If Mr. and Mrs. Royce were dissatisfied with the accommodations at appellants' house, they were at liberty to obtain rooms and board elsewhere and ask appel Stoel, Ex'r, etc. vs. Flanders and wife. lants to pay for the same. If appellants refused to pay, or insisted that unless they accept these provisions at their home they would not furnish them at all, there would have been a breach of the contract. But there was no such evidence or finding. It is admitted by the finding that comfortable rooms and good board were furnished. And the appellants cannot be charged with failure to perform the contract because of ill-usage, when the old people never requested a change of location where they would not be subject to the ill-treatment complained of. The right to rescind a contract is in every case strictissimi juris. 2 Parsons on Con. 526, 501, note y. Again, the agreement in this case is not unlike the one in Peterson v. Olson, 47 Wis. 122, and the amount of recovery should be limited to the value of the things not furnished. See 2 Greenl. Cruise, 80; 1 Jones on Mortg. sec. 388; Fay v. Guynon, 131 Mass. 31; Amos v. Oakley, id. 413; Schell v. Plumb, 55 N. Y. 592; Parker v. Russell, 133 Mass. 74; Furbish v. Sears, 2 Clifford, 454; Hawkins v. Clermont, 15 Mich. 511; Hoyt v. Bradley, 27 Me. 242; Austin v. Austin, 9 Vt. 420. On the foreclosure of a mortgage which stands as security for such a contract, the damages will not be the penal sum of the mortgage, but only what the injured party suffers by the breach. 1 Jones on Mortg. sec. 393, note 5; Ferguson v. Kimball, 3 Barb. Ch. 619; Fiske v. Fiske, 20 Pick. 499; Wright v. Wright, 49 Mich. 624; Bresnahan v. Bresnahan, 46 Wis. 385. The fact that the mortgage foreclosed in this action was given for moneys theretofore advanced to the parties, does not affect its character as indemnity against damage by a failure of the subsequent agreement to support. Again, conceding that the action was properly brought, that the contract was entire and subject to rescission, that the court might have put the parties in statu quo, and that appellants cannot have any advantage under the contract, they must still be held entitled to credit for what they have done Stoel, Ex'r, etc. vs. Flanders and wife. under the contract; and the mortgagees are not entitled to confiscate all they have received under it. Burnham v. Mitchell, 34 Wis. 117. In this case the court held the condition to be a condition precedent and applied the same rigid rule that would obtain in an action at law brought by the appellants on the contract. But the condition was manifestly inserted as security for performance, and should receive the same construction as other security clauses, which are universally held to be conditions subsequent. And the plaintiff, having come into a court of equity, must do equity. For the respondent there was a brief signed by Dodge & Fish, of counsel, and the cause was argued orally by Mr. Dodge and Mr. T. M. Kearney. To the point that entire and strict performance of all the conditions precedent was essential to the acquisition of any rights under the agreement, they cited 4 Kent's Comm. (12th ed.), 125; 2 Washb. R. P. 8; Nerius v. Gourley, 95 Ill. 206; Brannan v. Mesick, 10 Cal. 95; Vanhorne's Lessee v. Dorrance, 2 Dal. 304, 317. The acts found by the court constituted a breach of the conditions. Bogie v. Bogie, 41 Wis. 209; Tracey v. Sacket, 1 Ohio St. 54; Oard v. Oard, 59 Ill. 46; Frazier v. Miller, 16 id. 49–50. case is in the usual The note for $1,600, ORTON, J. The complaint in this form for foreclosure of a mortgage. and the mortgage collateral thereto, bear date July 2, 1881, and were given to Mary Royce by George F. Flanders and Ione A. Flanders, his wife, the appellants. The suit was brought by Mary Royce, and she having died, it was revived in the name of the respondent, her executor. stated in the answer that the said Ione A. Flanders was the daughter and only child of the said Lewis and Mary Royce, and that they being well advanced in years, and desirous of avoiding the cares and responsibilities of active life, and at the same time to secure to the said Ione what Stoel, Ex'r, etc. vs. Flanders and wife. ever should remain of their property after providing for their support, the said George F. and Ione A. Flanders executed and delivered to them the following agreement, viz.: "This agreement, made and entered into this 31st day of July, 1883, between George F. Flanders and Ione A. Flanders of the first part, and Lewis Royce and Mary Royce of the second part, witnesseth, that for and in consideration of money, lands, and tenements heretofore conveyed, the said George F. Flanders and lone A. Flanders shall maintain the said Lewis Royce and Mary Royce for and during their natural lives; that is to say, said parties of the first part are to furnish good and comfortable room or rooms, good and comfortable board, do their sewing and washing, take care of them when sick. [Signed] "GEORGE F. FLANDERS. "IONE A. FLANDERS." It is further alleged in said answer that, at the same time, and as part and parcel of said agreement, the said Mary Royce, for the consideration aforesaid, made and delivered to George F. and Ione A. Flanders, the following agreement, to wit: "Know all men by these presents, that I, Mary Royce, of Burlington, in consideration of a contract made and entered into on this day by George F. Flanders and Ione A. Flanders, to support and maintain the said Mary Royce and Lewis Royce during their natural lives, do hereby declare that I have agreed with the aforesaid George F. Flanders and Ione A. Flanders not to collect, receive, or ask for any further interest on a certain mortgage, executed by George F. Flanders and Ione A. Flanders on the 2d day of July, 1881, and recorded July 6, 1881, at 5 o'clock P. M., in vol. 47 of Mortgages, page 590; provided, that the said George F. Flanders and Ione A. Flanders shall perform on their part the contract referred to and before mentioned; and in case Stoel, Ex'r, etc. vs. Flanders and wife. that the said George F. Flanders and Ione A. Flanders shall perform the said contract according to the meaning and true spirit thereof, during the natural lives of said Mary Royce and Lewis Royce, I, Mary Royce, do declare said mortgage fully paid and satisfied, and by these presents discharged of record. "In witness whereof I have hereunto set my hand and seal this 31st day of July, A. D. 1883. [Signed] "In presence of "L. B. COLTON. "J. B. WHEELER." "MARY ROYCE. [Seal.] It is also alleged that the mortgage referred to is the same as the one in suit, and that the appellants have in all respects kept and performed the conditions of said agreement up to the 10th day of September, 1885, when the said Mary Royce refused to accept their further care and support, and that they are ready and willing and offer to perform the contract if the said Mary Royce will accept the same, and that they maintained the said Lewis Royce until he died, July 23, 1884, and the prayer is that the action may be dismissed. The plaintiff, in reply, admitted the execution of said agreements, and alleged that the said defendants have neg lected and entirely failed to keep said agreements on their part, by neglecting and failing to furnish the plaintiff, Mary Royce, with comfortable room or rooms, and with good and comfortable board, and by neglecting to take proper care of her, and misusing and ill-treating her in various ways, and that the condition upon which said release was given has not been complied with and is therefore of no force or effect. The evidence upon the trial has not been made part of the record. The circuit court found "that, from and after the execution of said agreement for maintenance and said conditional |