Tyson v. Doe

The opinion of the court was delivered by Royce, J.

The questions arising upon the report of the auditor, relate to that class of items in the plaintiff’s account which make up the sum of $285.92, and to the six ploughs, amounting to $39.72. In reference to the former, it is first to be determined, whether any action could properly be commenced, until the time of payment originally agreed upon had passed ; and secondly, whether the action on book account was the proper action.

So long as a contract, by its terms, remains executory, it may be rescinded, or put an end to, in various ways. This may sometimes be done in virtue of a right expressly reserved to one party alone, or to each of the parties. So the contract may be subject to some express or implied condition, the non-performance of which shall operate to annul it, at the election of the party entitled to insist on the condition. It may be superseded by another agreement upon the same subject, or the parties may renounce and abandon it, by mu *574 tual consent. And although we find it laid down, as a general rule, that the neglect or refusal of one party to fulfill a contract will not entitle the other to rescind it, unless they can both be placed in statu quo; yet the rule, in this extent, is understood to be applicable only to such an entire recision of the contract, ab initio, as shall revest in each party the rights he possessed, antecedently to the contract. Even then it may be doubted whether the rule is without exceptions. Giles v. Edwards, 7 T. R. 181; Gray v. Hull, 11 Johns. R. 441. There is, likewise, a class of cases, which allow a party to sue, in general assumpsit, for a part performance of a special contract, and absolve him from a further execution of it, because the other party has violated the contract, or refused further to act under it. These cases do not always proceed upon the notion of a strict and absolute recision of the contract, since they often permit the partial execution of it to stand pro tanto. Planché v. Colburn, 8 Bing. 14. See also 1 Pick. 57 , and 4 Wend. 285 . Of this latter description is the present case. It was never supposed that the property in the articles, already delivered under the contract, was to revest in the plaintiff, though the conduct of the defendant fully authorized him to suspend any further delivery. The contract thereupon ceased to be executory on the part .of the plaintiff, his accruing obligations under it being thus discharged. And we think he became entitled to treat the stipulation for a year’s credit as being equally at an end. To allow the defendant to insist on that stipulation, whilst he repudiates others, would be to enforce a different contract from that which the parties entered into. It may be admitted as generally true, that where there is a mere waiver of further performance, by mutual assent, the contract, in other respects, will remain in force. James v. Cotton, 7 Bing. 266. In this case, however, there was no such mutual waiver by consent, but a violation of the contract by one party, which prevented its further execution by the other.

The view which has been taken of the contract disposes of the next point. Although the articles charged were delivered under a special contract, they were such as are usually charged on book; and the parties evidently intended that an account on book should be made, not only of the articles *575 delivered on one side, but of the services to be rendered, and other payments to be made, on the other. And the provision for giving credit having ceased to bind the plaintiff, hé was at liberty to bring his suit, either on book account, or in general assumpsit.

The claim for the six ploughs is entirely of new impression, especially in this form of action. It is not for property sold or delivered to the defendant, or for which he has ever consented to be accountable. The claim arises from a disposition of the ploughs, which took place without the concurrence of either of these parties. They were attached and sold on process against the defendant, after he had set them apart as the property of the plaintiff. And if the designation was effective to pass the property and possession, the attachment was a trespass upon the plaintiff, for which he has a remedy. If the designation was insufficient for that purpose, the plaintiff might raise the question, whether he was bound to account for the ploughs, as for property purchased of the defendant; and if once bound, whether the liability had not become extinguished, or a counter liability imposed upon the defendant, since the property ultimately went for his benefit. But all this is beyond the legitimate scope of the book action. For the purpose of recovering the price or value of property, this form of action should be limited to cases of actual sale, or to cases where the party has admitted his indebtedness and liability as upon a sale; in other words, where he has consented that his previous appropriation of the property should be treated as a purchase of it. Pangborn v. Saxton, 11 Vt. R. 79; Starr v. Huntley, 12 Vt. R. 13. We are clearly of opinion, that, for this portion of his account, the plaintiff should not have had judgment. The judgment below is, therefore, reversed, and another judgment is to be entered up in favor of the plaintiff, including the $285.92, but excluding the $39.72.