Fay v. Oliver

The opinion of the court was delivered by Royce, Ch. J. ¡The plaintiff’s objection to the admission of certain parol evidence in the court below has not been alluded to in the argument here, and will be treated as waived. The question to be determined is, whether the plaintiff had a right, under the circumstances appearing in the case, to rescind his contract of purchase as to the fifty acres, and resort to this general action to recover back the consideration paid. His right is contested on two grounds ; — 1, That no rescisión could be allowed, unless by mutual assent, because there had been a part execution of the contract, and the parties could not be placed in statu quo; — 2, That the contract was entire, embracing as well the old farm as the fifty acres, and that, if rescinded at all, the rescisión must have been entire, and not merely as to the fifty acres. In considering these objections, it is necessary to keep in view an obvious difference between the contract in this instance, and those contracts for the sale, or exchange, of personal property, which are to be executed by a delivery in parcels through a period of time; or, as sometimes expressed, where the contract is continuous. For in such cases it often happens, that the portions delivered are soon consumed, or disposed of, and cannot be restored. And hence many cases of this description have occurred, where, for causes accruing during the progress of execution, one party has been permitted to rescind the contract, without any restoration of what had been delivered or received under it. Of this class was the case of Tyson v. Doe, 15 Vt. 571. Neither have the cases, where contracts for service have been rescinded, any general application or analogy to the present. This was a contract of sale, where the property sold necessarily remained in a state to be the subject of re-conveyance, or other disposition, and where the parties were not [122] disabled to carry the contract into complete execution, or mutually to rescind it. There is no appearance of fraud on either side in procuring or concluding the contract. Nor was it a case, where the contract professed to reserve to one party the right to put an end to it, nor where it was subject to any express or implied condition, the breach of which would confer such a right. It is obvious, therefore, that, on common principles, one of the parties could no more rescind the contract, without the other’s express or implied assent, than he alone could have made it. And hence we find if laid down as a rule, that “ one party cannot, without the assent of the other, rescind an absolute contract of sale.” Long on Sales 137. But it is said to be a rule, also, that, if one party to a special corr-tract not under seal refuses to proceed in the execution and fulfilment of it, such refusal is tantamount to an assent to its dissolution, and will authorize the other party to rescind it. And that this may be generally true, in the cases to which I first adverted, especially when refusal on one side has operated as prevention on the other, and even in all cases, where the situation of the parties in reference to the property has not been changed by a part execution of the contract, and the interest of no third person is to be improperly affected, we have no occasion to controvert. But that mere refusal has always this effect, and without regard to the condition in which the parties are to be left, I am by no means prepared to admit. If, however, the rule could be received with as universal an application, as Mr. Smith would seem to give it in his notes to Cutler v. Powell, 6 T. R. 320, (2 Smith’s Leading Cases 14,) it should, at least, appear that the refusal was in no way qualified, but absolute. Lines v. Rees, 1 Har. Dig. 372. It should substantially amount to an avowmd determination of the party not to abide by the contract. But here there was nothing like such a determination expressed by the defendant, though he refused to deed the fifty acres when required so to do. He did not say he would never give the deed, but refused to give it then, on the alleged ground, that the plaintiff’s notes had been taken up without full payment. This rather implied a willingness to fulfill the contract, on reviving the balance which he claimed to be unpaid. And though the jury found against his claim, it may nevertheless have been asserted in good faith, and may have formed a principle subject of controversy in the trial. [123] But to come to the precise grounds of the present defence;— Here had been full payment made on one side, and full possession given on the other, with an actual conveyance of part of the land. The possession had been enjoyed by the plaintiff for several years, before he attempted any rescisión of the contract. So that a part execution of the contract had taken place, according to every rule on the subject, both at law and in equity. If the payment alone did not amount to this, the conveyance of part and such a change of possession as to all most assuredly did. And it is evident, that no subsequent rescisión of the contract could restore the parties to their original condition, in reference to the property; for along period of possession and enjoyment, inconsistent with such original condition, had already passed. And to prove that, in such a state of things, when the 'parties could not be placed in statu qua, it was too late for either, alone, to rescind the contract, the authorities are numerous and conclusive. The mention of a few will suffice. Hunt v. Silk, 5 East 449. Reed v. Blandford, 2 Y. & J. 284. Seymour v. Bennet, 14 Mass. 266. Ellis v. Hoskins, 14 Johns. 363. Caswell v. Black River Co., Ib. 453. Fuller v. Hubbard, 6 Cow. 13. Gale v. Nixon, Ib. 445. The other ground is also clearly with the defendant. It must be nnderstood from the amount of the verdict, that the jury found the seventy five pounds, or three hundred dollars, to have been the price agreed upon for both tracts of land, as the defendant claimed at the trial. And though the parties, in their estimates of the value, referred two thirds of that sum to the fifty acres, and one third to the old farm, it was still one entire purchase, at one price. For the whole price the defendant gave credit, executing a conveyance of one tract at the time, and stipulating to convey the other after receiving payment for both. Now we are not to assume, that he would have sold either tract by itself especially for the sum at which it was estimated in the negotiation. And hence the estimated value placed upon the fifty acres may be more or less than the damages, which the plaintiff ought to recover for the defendant’s refusal to convey that tract. Indeed, the ease is evidently within all the reasons of the rule, that a contract rescinded ab initio as to part, and at the election of one party, must be wholly rescinded. Jen [124] kins v. Simpson, 2 Sheple, 364. Franklin v. Miller, 4 Ad. & El. 599. Raymond v. Bearnard, 12 Johns 274. The result is, that, as the contract had been so far executed, that the plaintiff had realized manifest benefit under it, and the parties could not be placed in statu quo, it was not in a state to be rescinded at all, and much less as to the fifty acres only, except by mutual consent. The plaintiff should therefore have declared specially upon the contract; and the charge of the court below, that he could sustain the present action, was erroneous. Judgment of county court, reversed, and the cause remanded to that court for another trial.