McOLELLAN, J.
The appellant, plaintiff below, was the owner of a vessel named “City of Camden;” and with reference to which it and appellee contracted, in writing, in substance as follows: Appellee paid appellant the sum of $5,000, and consideration inducing such cash payment is stated, in the contract, to have been (1) that appellant, upon the request of appellee, at any time within 12 months from the date of execution of the agreement, would sell and convey to appellee the vessell named for the sum of $4,440, wijth interest thereon at the rate of 6 per cent, to be paid in cash at the time of making- said inquest, and that, upon the payment of said sum to it, appellant would make a good and sufficient bill of sale of the vessel to appellee; (2) that- in the event appellee desired an extension of time for another 12 months he had the option to do so; (3) “In the event that the said Peyton E. Tunstall, Jr., shall fail to pay to the Ollinger & Bruce Dry Hock Company the said sum of four thousand four hundred and forty dollars ($4,440.00') as provided by this agreement, with interest, or shall fail to keep and perform any other obligation in this instrument agreed by him, then this *176agreement shall cease and determine, and the said Ollinger & Bruce Dry Dock Company shall have the right to retain the said sum of five thousand dollars (5,000.00), and any part of the said sum of four thousand four hundred and forty dollars ($4,440.00) that shall have been paid as compensation for being deprived of the right to otherwise sell and dispose of said steamboat during said period, and as rent for said steamboat during said period, and said Peyton R. Tunstall, Jr.,shall owe the said corporation nothing more” (italics supplied). (4) That appellee had the right to operate said vessel without charge for its use, but, if he did not so desire, there should be no wharfage charges for the use of appellant’s wharf for the vessel, “and during the time said steamboat is not being operated the said Peyton R. Tunstall, Jr., is to keep a watchman on her day and night at his expense;” (5) that appellee should pay 6 per cent, interest on said deferred payment so long as said payment, was unsettled, and appellant should receive each month, during the time, or extension thereof, of the agreement, the net earnings of the vessel from whatever source the same was derived until the said deferred payment, with interest, was paid; (6) that in the event it became necessary to make repairs on the vessel, during the life of the contract, such repairs should only be made on an order from appellee to appellant instructing it to have the repairs made, and appellee should pay the expense thereof. There were a few other provisions in the contract not now necessary to be considered. It does not appear that appellee elected, during the period specified, to buy the vessel.
The several counts of the original complaint are predicated upon alleged breaches accruing by the failure of appellee (1) to pay the interest stipulated, (2) to or*177der the necessary repairs, (3) to maintain the watch specified, (4) to pay. the earnings of the vessel to appellant.
' The demurrers take the point that, by the letter of the contract, the retention by appellant of the sums mention ed in the contract should entirely exonerate the appellee from any further or other obligation to the appellant for a breach of any or all of the conditions of the agreement. It is hardly necessary to say that such is the express and plain provision of the original agreemnt made by the parties. We have quoted and italiaed the instrument in this special particular. There is no room for construction or interpretation; the original agreement being, in this respect., entirely unequivocal.
After the demurrers were well sustained to the original counts, they were amended. The first four (numbered) amendments allege, in substance, that notwithstanding breaches of the agreement the parties did not rescind the contract, but on the contrary, appellee insisted upon its performance by the appellant. The last two (numbered) amendments, 5 and 6, allege, respecetively, in substance: (1) That subsequent to the execution of the contract the parties agreed that the instrument should be construed and understood to the effect that the contract should remain in force, and that each party should be bound to the other to do and perform those things which were stipulated therein to be done by both, respectively, notwithstanding appellee had breached the contract; (2) that appellee waived the provision of the contract that it should cease and determine on account of the failure of the appellee to perform his obligations thereunder, and this, notwithstanding appellee had breached the contract as complained.
*178It is too evident for that, in order for the appellee to avoid effect, plainly expressed, of the exonerating of appellee from further liability provision of the original contract, the parties must have done something' more than merely fail to rescind it for the breaches asserted or more than waive its rescinding, or more than insist upon its performance after breach, or more than agreed that, notwithstanding the breaches, they should each be bound to do those things provided, in the original instru ment, each should do. Every one of the conditions, acts or agreements set forth in the amendments is perfectly consistent with the continued efficacy, unimpaired in any degree, of the exonerating provision of the original agreement. In other words, there is averred in the amendments no subsequent agreement or act or waiver that operated, directly or indirectly, to strike from the original agreement the exonerating provision. There is nothing so averred that denuded the appellant of the right to retain, upon the conditions stated, the funds specified in the original agreement, nor, on tin*.other hand, that denuded the appellee of the right to stand exempt, from the consequences of any breach committed by him, from further liability than the retention by appellant of those specified funds or sums. It might well be that the parties agreed to a continuance of the contract’s binding-qualities, notwithstanding its breach, and still the consequences of the breaches, viz., exemption from liability therefor, would not be altered. Indeed, the very act or agreement for a continuance of the contract, whatever the necessity for, or inducement to, the subsequent agreement operated, unless otherwise stipulated by the parties, to clothe each other with the rights each had under the original, yet breached, contract.
It results that, so far as the exonerating provision is concerned, the acts, waivers or agreements stated in the *179amendment's had no effect — were not so intended by the parties — to change that provision of the contract.
The demurrers to the amended counts were correctly sustained, and the judgment is affirmed.
Affirmed.
Tyson, O. J., and Dowdell and Anderson, JJ., concur.