Cooper v. McIlwain

BRIGKELL, C. J. There can be no doubt that tbe par- . ties to a contract may rescind or modify it, at pleasure; and their mutual assent is all that is necessary to support tbe modification or rescission. The agreement made by these parties on tbe 2d day of October, 1874, was by their mutual assent, expressed in writing, rescinded, and a new contract made, materially variant in stipulations and in tbe rights to which the parties were entitled. This latter contract; alone, can be regarded in ascertaining the rights and relations of the parties. It was entered into after Mcllwaine and Jackson had been fully informed of Cooper’s purchase of the interest of Woods and wife in the lands, and did not contemplate an acquisition by Jackson and Mcllwaine, or either of them, of any right in that purchase. The interest it was contemplated they should acquire, was in particular parts of the land, if the whole tract was purchased by Cooper, at the sale to be made subsequently under the decree of the Court of Probate. Their rights and interests depended wholly on such purchase, and it was a right to and interest in particular parts of the tract, at a specified price, or a price readily ascertained by calculation, if the purchase was made. If Cooper had not purchased at the subsequent sale, and the price for which the lands sold, would not have repaid him the same he had paid Woods and wife, he would not have had a right to retain for any part of the difference, from the five hundred dollars Mcllwaine had deposited with him. Mcllwaine could have well said, I never ventured with you into that speculation, and can not bear any part of its losses. The error which underlies the instructions given by the court, and its rulings on the demurrers, and in its refusal of several of the instructions requested by the appellant, is, in the supposition that the parties were equally interested in tbe purchase of the lands, and that Cooper’s purchase of Woods and wife, was but a part of the purchase contemplated. The contract has no reference to Cooper’s purchase of Woods and wife. The purchase it contemplated was to be made subsequently, at the public sale made by the commissioners under the decree of the Court of Probate. That purchase was to be made by Cooper, and the rights of Mcllwaine and [301] Jackson were dependent on the purchase being made.- If it was made, Mcllwaine was entitled to one hundred and twelve acres, at $5.50 per acre, without regard to the price paid at the sale. Jackson was entitled to eighty acres, at the price bid for the whole, and if that price exceeded the price paid by Mcllwaine for the one hundred and twelve acres, Jackson promised to pay one-third of the excess, Cooper losing the remaining two-thirds. Mcllwaine and Jackson had the right to the lands described, on the terms expressed, if Cooper made the purchase. They had no other rights, stipulated for no other, and the only obligation Cooper assumed, and the only duty he was under to them, was in good faith to make the effort to purchase the lands, when offered for sale under the decree of the Court of Probate, and if he purchased to let Mcllwaine and Jackson take, under the terms of the contract, the parts of the land described. They had no right to participate in any of the profits he may have realized by his purchase from Woods and wife, which purchase was prior to the contract, and of which the parties had full knowledge when they contracted. On the facts found in the record, there is no ground on which the action can be supported, and without noticing the several rulings of the court, it is enough to say, they are inconsistent with the views we have expressed. The judgment is reversed and the cause remanded.