Fletcher v. Cole

The opinion of the court was delivered by Kbixogg, J. The plaintiff, as an officer, having attached the lumber in question upon legal process against one Myers, and the defendant having subsequently taken the lumber and converted it, this suit was brought to recover the value of it. It being conceded at the trial, that the defendant was the owner of the lumber in question shortly previous to the attachment, it became important to the plaintiff to show a sale and delivery of the same by the defendant to Myers, so that the property thereby vested in Myers; and testimony was given by the plaintiff, tending to prove that fact. The defendant introduced evidence tending to show, that the lumber never was delivered. The defendant offered to prove the declaration made by Myers to the clerk of the defendant, when he called upon him to pay for the lumber, “ that when the defendant furnished lumber according to the contract, he would pay for it,” but the same was excluded by the county court; — and in this we think the court erred. The proof thus offered and excluded, in connection with the repeated declarations of Myers, while removing and piling the boards, that he would not take them at the mill measure, which, by the terms of the contract, he was bound to do, had a direct tendency to show, [119] that at that time he had not accepted the boards. The contract respecting the lumber was executory, and of course so remained, until executed by a delivery and acceptance of the boards. It is not pretended, that at the time of malting the contract, the property vested in Myers. The logs were to be sawed into boards by the defendant and measured by the sawyer, before a delivery was contemplated. Until a consummation of the contract by delivery by defendant and acceptance by Myers, the title to the lumber would remain in the defendant. The testimony should have been admitted. The court were requested to instruct the jury, that if they found the contract was rescinded, the plaintiff could not recover. In answer to this request, the court informed the jury, that if they found the contract was rescinded, the plaintiff could not recover, but their verdict would be for the defendant; that it was competent for the parties to the contract to put an end to it, at any time before the attachment, if it was done by their mutual understanding and consent; but that neither party could do it without the consent of the other. This charge appears to us to be erroneous. Though it be true, that contracts may be rescinded by the mutual consent of the parties, we think it equally true, that, under certain circumstances, one of the contracting parties may rescind, without the consent of the other. For instance, where, by the terms of the contract, concurrent acts are to be performed, as a delivery of the property by one party and a payment of the price by the other, if either party should refuse to perform his part of the contract, the other party would be at liberty to treat it as an abandonment of the contract and justify a rescisión of it. In the case at bar, the evidence tended to prove, that the defendant was entitled to the purchase money upon the delivery of the lumber, and that, when the lumber was in a condition to be delivered, Myers refused to perform his part of the contract by receiving the boards at the mill measure and paying the purchase money, and that thereupon the defendant rescinded the contract and appropriated the lumber to his own use, — as he might well do provided' the facts were as his evidence tended to prove. And it seems to us, that the county court should have so instructed the jury. The judgment of the county court is reversed, and the case remanded for a farther trial.