Allen v. Webb

Where one party to a contract refuses to perform his part of the same, the other party may insist upon the contract being carried out, or he may avail himself of the refusal and rescind the contract. But he cannot pursue both courses ; it is not competent for him to enforce a performance on refusal made, and then endeavor to use the refusal as a ground to rescind. Where A. and B. entered into an agreement with C., by which they, in consideration that a certain suit should be discharged, and certain judgments should be assigned to them, gave their promissory notes to C., and C. afterwards refused to assign the judgments and offered to return the notes, but they declined to receive them, aid subsequently caused the suit to be discharged in court — held, upon an action brought on one of the notes, that A. and B., having refused to rescind the contract, and having caused the suit which entered into the consideration of the note to he discharged, could not now-set up the refusal to assign the judgments in defence of the notes; that their remedy was upon the contract.

Assumpsit, on a promissory note dated October 8th, 1847, payable to one John Hopkinson, or order, for $150, on the first day of June following, with interest annually, and endorsed by Hopkinson to the plaintiff. It appeared on trial that the plaintiff, Charles B. Allen, was a nominal party only; that the note was the property of one Dorcas Hopkinson, the mother of the said John, and was given under the following circumstances: A suit was pending in the State of Vermont, in favor of the said Dorcas Hopkinson against the town of Guildhall, founded upon judgments recovered against one Steele and one Denison in favor of said Dorcas. The judgment against Denison was for default as constable, in not properly doing his duty in the case against Steele. And that judgment being unsatisfied, the suit against Guildhall was instituted, the town, by the laws of Vermont, being liable for the default of their constables on their failure to respond any damages recovered against them. The present defendants, Webb and Dewey, were the sureties for Denison to the town for the full and faithful discharge of his duties, and were consequently, interested in the result of the suit against the town. On the eighth of October, 1847, the day of the date of the note in suit, the parties met for the purpose of settling the suit against the town. Dorcas Hopkinson was not present, but her son John was, and her attorney-acted for her. It was then agreed that the suit should be discharged, and, in consideration thereof, Webb and Dewey gave their two notes, the one in suit, for $150, and another for $100. A discharge of the suit was written and signed by the respective attorneys. The defendants then proposed to show that at the time of the settlement it was further agreed, as a part consideration of the notes, that Dorcas should assign to the defendants the judgments against Steele and Denison; that a transfer of the same was then written and presented to her the same day, but she absolutely refused to sign the same, and has never signed it, but on the contrary has settled the judgment against Denison for seventy-four dollars. The defendants admitted, however, that when it was ascertained that Dorcas would not assign the judgments, the notes were duly tendered to them, with an offer to throw up the whole settlement; but they refused to receive the notes and insisted upon the settlement being carried out, and at the next term of the court where the action was pending, a discharge was entered by them upon the docket and records of the court, according to the terms of the agreement which had been signed. The court ruled that the proposed evidence of the defendants, taken in connection with their admissions, would form no bar to the plaintiff’s right of recovery. Thereupon a verdict was taken by consent for the plaintiff, on which judgment was to be entered, or the verdict set aside and a new trial granted, according to the opinion of this court upon the correctness of the ruling.