Austin v. . Miller

Neade, J. It is not controverted that if the defendant had not returned the mare at all, lie would have been liable for the price agreed on, $250. And the same is true if he had offered ,to return her inj areJ, and the plaintiff had refused to receive her. So the question is, whether the fact that he did, after the time agreed on, return the mare in a damaged condition, when she was received by the plaintiff and sold, make any difference % Can we say, as a matter of law, that the taking •of the mare back was .a recission of the contract, or a waiver of the plaintiff’s right to recover for a breach of the contract ? It is evident, as a matter of fact, that the plaintiff did not intend it as a recission or waiver, for he had already instituted his suit for damages, and continued to prosecute it. The .reasonable implication is, that when the plaintiff received .the ■mare back, he had no purpose to release the defendant, but . fearing that if he refused to take her, he might lose the mare and the price too, he determined to take her as a security for the claim which he had against the defendant, and to do the best he could with her. If this was not so, then it would have been easy for the defendant to . submit an issue to the jury *277 embracing tbe enquiry as to tbe intent of tho plaintiff. This be chose not to do. If A agrees to deliver to B an article of a certain quality for which B is to pay a certain price, and an article of an inferior quality is offered, B may refuse to receive it. And, generally, this is the better way, the contract being executory. But if B has paid for the article, and by rejecting it he may lose the money and the article both, then the better way is for him to receive the article and make the most of it, and sue A for a breach of the contract. That is substantially what the phtintiff did in this case. It is like the shingle case, Cox v. Long, 69 N. C. Rep., 8. There Long had agreed to furnish Cox shingles of a certain quality, at a certain price, and Cox had paid for them. Shingles of an inferior quality were delivered, and Cox, under stress of circumstances, and to keep his house from injury, received and used them, and sued Long for a breach of his contract, and recovered. So here, the defendant promised to deliver the mare in a certain Condition he delivered her in an inferior condition. The plaintiff, under stress of circumstances, to keep from losing his mare, took her and used her, and sued for breach of the contract. Spiers v. Halstead, at this term. There is error. Judgment reversed, and judgment here for plaintiff upon the finding of the jury, upon the basis of $25tt for the breach of the contract, less $150, which plaintiff waived on the sale of the mare, with interest from the time of the verdict. Pee Cueiam. Judgment accordingly.