(After Stating the Facts.) — There are numerous assignments of error in this case, but we shall not find it necessary to consider them all. Evidence was given upon the trial tending to show an agreement in 1883, and before the acts complained of, between the plaintiffs, or some of them, and the defendant, for a purchase by the defendant of the right to take water from this ditch; the plaintiffs claiming to be tenants in common of the right to the water flowing in the' ditch. The counsel for the defendant requested the court in its charge to the jury to instruct them that “if you find from the evidence that the plaintiffs, or a portion of them, proposed in writing that the defendant should be entitled to water if he should do certain work on the ditch, and defendant accepted such proposition, and proceeded to do such work, and offered to complete the same, but was prevented by the plaintiffs, the defendant is entitled to the rights the plaintiffs proposed to give him. They cannot rescind the contract if the defendant had accepted, and partly performed, and offered to perform the rest, but was prevented by plaintiffs.” The court refused to so instruct, but modified the request, and gave the modified charge as follows: *469“If you find from the evidence that the plaintiffs, or a portion of them, proposed in writing that the defendant should be entitled to water if he should do certain work on the ditch, and defendant accepted such proposition, and proceeded to do such work, and performed all the conditions of the contract on his part, then he was entitled to his proportion of the water.” This charge was objectionable for ambiguity, and as it really made the jury the judges of the legal obligations of the defendant. But, given ras it was, in contradistinction to a request clearly defining the rights of the defendant, and the obligations of the plaintiffs, it could be understood by the jury only as charging that acts of the plaintiffs could not excuse the defendant from the full completion of all the work to be done. The evidence tended to show his acceptance of the plaintiff’s terms, and a part performance. Indeed,'the court submits the question to the jury as to the value of the defendant’s work on this agreement; and the jury found upon it as follows: “Question for special finding. What was the value to the plaintiffs of the work done, or caused to be done, on the. ditch by the defendant under the contract made in the spring of 1883? Answer. $50.” But the respondent seeks to avoid the consequences of this error of the court in refusing to charge as requested, and in giving the modified charge, by claiming that, even if the charge was wrong, and the finding of the jury was wrong in consequence of it, still it does not prejudice the defendant, for the reason that the verdict of the jury was only advisory, and not conclusive upon the court; that the court still had the evidence before it, and could make its own findings on this point; and that the court did in fact act on this view of its duties, and in the fifteenth finding of fact found as follows: “That the defendant did, in the spring of 1883, enter into a contract with the plaintiffs Bowman, Butler, and McDowell, to enlarge the ditch described in the plaintiffs’ complaint, and have an interest therein; that the defendant failed to perform the conditions of said agreement, and plaintiffs terminated said agreement.” This the court had no right, as an original finding, to do. The question submitted to the jury was one of fact, in a common action at law, for damages arising from trespass. In the seventh amendment to the constitution of the United States it is provided that “in suits *470at common law no fact tried by a jury shall be otherwise reexamined in any court of the United States than according to the rules of common law.” We are aware of no rule of law authorizing such re-examination, except through the regular proceeding of appeal. That the court followed the jury makes no difference with its right to make an original finding on this point. Its duty, if it did anything as to stating this as a fact found, was to follow the verdict; and the only allowable pro-sumption is that it did so. And it is equally presumable that the jury found that the acts of the defendant were unlawful, from the erroneous charge given them. The charge as given could have been followed by no other results, providing any part of the work the defendant was to do had not been done; and this although the cause of that failure was the unlawful acts of the plaintiffs themselves. His readiness and willingness to perform, if, indeed, such was the fact (and the evidence on that point raises a strong presumption on his part of such readiness and willingness), was not allowed to go to the jury, or to have any consideration by them. It may be further said that no notice was taken by either the court or the jury of the work done under this contract, further than to assess its value. But that work had been done by the'defendant on that contract, and it appears that the plaintiffs, without repaying it or offering to do so, "rescinded the contract.” A party to a valid contract, where there is no fraud or other special reason (and none is here shown), cannot rescind at pleasure, and especially where, as in this case, there has been a part performance, and still retain the benefits received under it. (2 Parsons on Contract, 679, 680; 1 Wharton on Contracts, see. 285, and cases cited in notes.) The judgment should be reversed. Judgment reversed. All concur.