Paul v. Meservey

Walton, J. The plaintiff obtained a verdict in this case, and the defendant moves to have it set aside on the ground that it is against law and against evidence. The case is this :■ The plaintiff sold the defendant a mare supposed to be with foal. The defendant paid the plaintiff twenty-five dollars, and agreed to let him have the colt when it should be four months old; or, if the defendant wanted to take the colt at fifty dollars, he was to have [421] the privilege. The plaintiff afterwards proposed to take back the mare, and let the defendant have a two years old colt, if the defendant would pay him thirty-seven dollars and fifty cents to boot. This the defendant agreed to, and the contract was executed. The defendant paid the boot, and the plaintiff took back his mare, and soon after sold her to another person. The plaintiff now claims, that inasmuch as the defendant thus disabled himself from delivering to him the colt when it should be four months old, he is entitled to the fifty dollars. The defendant, on the contrary, contends, that inasmuch as the new contract was inconsistent with the former one, and rendered its farther performance impossible, he was discharged from its further performance; that the effect of the new contract was to rescind the old one ; or, at least, waive its further performance. We think the defendant is right. We think that when a new contract is inconsistent with, and renders the performance of a former one between the same parties impossible, the former is rescinded, upon the same principle that a subsequent act of the legislature repeals a former act, when the two are inconsistent. True, the defendant agreed to deliver the colt to the plaintiff when it should be four months old, or pay fifty dollars. But this promise was in consideration of (in fact part of) the stipulation, that the defendant might take the colt at fifty dollars, if he wanted to. The plaintiff was not to have the colt and the fifty dollars too. The fifty dollars was to be the price of the colt if the defendant elected to buy it. And when the plaintiff took back the colt and sold it to a third person, — or, what is the same thing, took the mother and sold her before the colt was foaled, — the whole consideration for the promise failed. Motion sustained. Verdict set aside. New trial granted. Appleton, C. J.; Cutting, , Dickerson, Daneorth, and Tapley, JJ., concurred.