Huntingdon, &C., Railroad Co. v. English
| Decision Date | 04 March 1878 |
| Citation | 86 Pa. 247 |
| Parties | Huntingdon and Broad Top Railroad and Coal Co. <I>versus</I> English. |
| Court | Pennsylvania Supreme Court |
Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and TRUNKEY, JJ. WOODWARD, J., absent
Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1876, No. 117.
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James E. Gowen, for plaintiffs in error.—The plaintiff's right of recovery should have been restricted to the agreement contained in the letter of October 31st 1867. This was a new contract substituted in the place of the old one, and furnished the rule by which the rights and obligations of the parties were to be determined. The new contract was as to the old an accord and satisfaction: Christie v. Craige, 8 Harris 431; 2 Parsons on Contracts *681; Babcock v. Hawkins, 23 Vt. 561. Plaintiff had no right to elect to treat the second agreement as rescinded, and recover upon the first. Where a contract is to be rescinded, it must be in toto, and the parties placed in statu quo. Hunt v. Silk, 5 East 449; 2 Parsons *679. And there must be no laches in exercising the right to rescind: Pearsoll v. Chapin, 8 Wright 9; Babcock v. Case, 11 P. F. Smith 427; Morrow v. Rees, 19 Id. 373: Beetem v. Burkholder, Id. 249. Here the plaintiff retained the money and the note paid to him under the second contract. The agreement of October 31st expressly provided that the bonds were all to be retained until the stock was returned, and the plaintiff's disposal of them is sustainable only on the ground that the old agreement was rescinded, which was not as we have already contended. The measure of damages was erroneously stated by the court; we contend that the true measure is the value of the stock at the time the contract was broken. The duty or obligation in The Bank of Montgomery v. Reese, 2 Casey 143, arose out of the relation of trustee and cestui que trust, and not out of a contract relation as here: Wilson v. Whitaker, 13 Wright 117; Neiler v. Kelley, 19 P. F. Smith 403; McHose v. Fulmer, 23 Id. 365. In Musgrave v. Beckendorff, 3 P. F. Smith, 310, the contract bound the defendant to return the identical bonds which he had borrowed.
S. S. Hollingsworth and George W. Biddle, for defendant in error.—Upon a breach by the defendant of the contract of October 31st 1867, the plaintiff was entitled to avail himself of the remedies belonging to him under the contract of April 13th 1867.
In order that an accord may be a defence to the original claim, it must appear that the plaintiff accepted the agreement itself, and not the performance of it, as a satisfaction for his debt, so that, if it was not performed, his only remedy would be by an action for the breach of the accord, and not a right to recur to the original debt: Evans v. Powis, 1 Welsby, H. & G. 601.
By the terms of the second agreement, the plaintiff is expressly given the right to recur to his original claim upon the failure of the defendants to fulfil any part of such second agreement.
The plaintiff has not rescinded the second contract; he has only enforced those rights which that contract expressly gives him. Nor can there be any question, either, about the sale of the collaterals, because the first contract provided that they might be sold at either public or private sale without notice.
When a suit is brought to recover damages for a breach of contract to return borrowed stock, the plaintiff is entitled to the market price of the stock at the trial, together with all increments and dividends on the stock from time of default, with interest thereon up to trial: Bank of Montgomery v. Reese, supra; Musgrave v. Beckendorff, supra; Reitenbaugh v. Ludwick, 7 Casey 131; Persch v. Quiggle, 7 P. F. Smith 247; Conyngham's Appeal, 7 Id. 474; Work v. Bennett, 20 Id. 484. There is no limitation to the rule because of the fluctuating value of a stock or its scarcity.
We do not regard the acceptance by English, of the proposition made by the president of the company, in his letter of October 31st 1867, as the conclusion of a new contract, but rather the extension of the former arrangement. This previous undertaking contemplated the delivery to the plaintiff, on the 15th of June 1867, of the two hundred shares of Pennsylvania Railroad stock, which the defendant had received as a loan from plaintiff on the 13th of the preceding April. There was no return made of these shares at the date indicated, and English was about to bring suit, when the proposition of the 31st of October was made and accepted.
Taking these two papers as one contract and we observe that it provides, generally, for the return of the stock, or its equivalent in money, on the 21st of September 1868; specially, for payments in cash to be made from time to time, in all amounting to $10,000, the par value of two hundred shares, or if this sum was insufficient to "make good," as the parties termed it, the said shares at the dates specified, the company undertook to pay as much more as would accomplish that object. If, on the other hand, the defendant chose to return the stock, at the time fixed by the contract, the plaintiff was required to refund the money which he had in the meantime...
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