This is an action to recover $866.66 paid by plaintiff’s intestate to John P. Sanborn upon a contract for the purchase of land in the county of Los Angeles. After the contract had been made, Sanborn conveyed the land to Murphy, who expressly assumed all the obligations of San-born’s contracts. Sanborn was not served with process, and Murphy is practically the only defendant. The contract was made February 7, 1888. The purchase price was $2,600, payable in three equal installments—one, at date of contract; the second, February 7, 1889; and the third, February 7, 1890. The contract contained this stipulation: “That time shall be considered the essence of the contract, and if default shall be *963made in the payment of any installment of principal or interest, or in payment of taxes, when the same shall become due, then the whole of said principal and interest shall be due and payable, or this agreement may be rescinded, at the option of John P. Sanborn, his heirs, representatives, or assigns, and said John P. Sanborn, his heirs, representatives or assigns, shall have the right to re-enter upon said premises, and each and every part thereof, and all payments which shall have been made under this agreement by the purchaser shall be forfeited, and be retained as liquidated damages.” The property sold was described as lots 1, 2, 9 and 10, block 41, “according to the East Whittier townsite acreage property,” a map of which Sanborn agreed to put on record. John Aikman, plaintiff’s intestate, died August 10, 1889. He made no payments except the first, which was at the date of the agreement. He had then been in default since February 7, 1889. October 5, 1889, Sanborn conveyed the entire tract, of which the land sold to Aikman constituted a part, to Murphy, upon the condition heretofore stated. Neither plaintiff nor his intestate ever paid or offered to pay the balance of the purchase money due after the first payment. Neither Sanborn nor his assignee have ever refused to perform the' agreement made, nor are they in any default in respect to the said agreement. The purchaser did not take possession of the land. The suit was commenced November 1, 1894, without any offer to pay or any demand for a deed. Indeed, even at the trial the present owner of the land offered to convey to plaintiff upon payment as specified in the contract.

It is contended that Murphy rescinded the contract by failing to file the map according to which plaintiff’s intestate purchased, and by causing the townsite to be resurveyed so as to make some changes in the street. But if Murphy failed to perform his contract, or put it out of his power to perform, this did not of itself make a rescission. It only authorized Aikman to rescind, provided he was not himself, in default. I know there are cases in which such conduct on the part of a vendor has been called “rescission,” but it is obvious that such remarks are merely careless expressions; for in such cases the party not at fault may usually either deem the contract rescinded, and recover sums paid on it in an action for money had and received, or he may sue on the contract to recover damages for the breach. But, conceding *964that the vendor had by his own act put it out of his power to comply with his contract, or had been guilty of such a breach of it that he could not enforce it, the purchaser could not rescind, for he was first in default. But in ho event could he recover from Murphy money paid to Sanborn. The action is not based upon the contract, but upon the proposition that the contract has been rescinded, and, being nonexistent, the vendor has money which was paid to him without consideration; therefore, having money in his hands which belongs to the plaintiff, such action will lie. Had the purchaser not been in default, he, upon a tender to Sanborn, could, if Sanborn did not or could not comply with his agreement, have elected to rescind, and thereupon could have maintained such a suit against Sanborn, or he might have sued Sanborn for damages. A class of cases is cited here which, it is contended, hold that when, under a contract like this, the vendor insists upon the very terms of his contract— that is, claims that the vendee, by failing to pay, has, according to his covenant, forfeited all payments made, and his rights under the contract—he thus rescinds. It cannot be that, when one insists upon his stipulated rights under a contract, he indicates an intention not to be bound by it, and these cases must not be so understood: Merrill v. Merrill, 103 Cal. 287, 35 Pac. 768, and 37 Pac. 392. As we read the code, it expressly recognizes the right to agree to stipulated damages in agreements for the purchase of land (Civ. Code, secs. 3387, 3389); but even under the doctrine of Drew v. Pedlar, 87 Cal. 443, 22 Am. St. Rep. 257, 25 Pac. 749, the vendor has not consented to a rescission in this case. He has never declined to perform his contract. The judgment and order appealed from are reversed.