Dignan v. Spurr

• Decision Date: 09 December 1891
• Citation: 3 Wash. 309,28 P. 529
• Parties: DIGNAN v. SPURR.
• Court: Washington Supreme Court

28 P. 529

3 Wash. 309

DIGNAN v. SPURR.

Supreme Court of Washington

December 9, 1891

Appeal from superior court, King county; T. J. HUMES, Judge.

Action by James Dignan against James Spurr for breach of contract. Plaintiff obtained judgment, and defendant appeals. Reversed.

Preston, Carr & Preston, for appellant.

John H. Elder, and John K. Brown, for respondent.

ANDERS C.J.

The respondent brought this action against appellant to recover damages for an alleged breach of a contract in writing, which is as follows: "This agreement, made and entered into this 19th day of November, A. D. 1889, by and between James Dignan, of the city of Seattle, King county, state of Washington, party of the first part, and James Spurr, of the same place, the party of the second part, witnesseth, that for and in consideration of the covenants and agreements on the part of said party of the second part hereinafter set forth and contained, the said party of the first part agrees to manufacture at his brick-yard, in West Seattle, in said King county, five hundred thousand (500,000) good merchantable brick, the same to be sold and delivered to the said party of the second part, at the place and for the price hereinafter mentioned. Said first party is to commence delivering bricks from the second kiln which he shall burn at his said brick-yard, and shall continue to deliver all the brick he shall manufacture from said time until the full amount is delivered. Said brick are to delivered on a scow on such gridirons on the different slips in the city of Seattle water front as shall be most convenient for said second party. In consideration of the above the said party of the second part agrees to buy, purchase, and to take from said first party all of said five hundred thousand (500,000) brick upon said terms and conditions above named, and agrees to pay to said party of the first part thirteen dollars ($13.00) per thousand for all bricks to the amount aforesaid delivered on the gridirons as aforesaid, the said money to be paid when the said second party has promptly taken the brick from the said gridirons, and has delivered them at the buildings in the city of Seattle, where the same are to be used, it being hereby understood and agreed that the said second party is to take them promptly from the said gridirons, and is to deliver them promptly at the said buildings aforementioned. In witness whereof," etc. The plaintiff alleges in his complaint that he kept and performed all the terms and conditions of the contract on his part, and that between the 11th day of January and the 7th day of May, 1890, he manufactured 500,000 good merchantable brick, and, as fast as they were manufactured, delivered them on gridirons, on the water front of the said city of Seattle, at the place designated by defendant as most convenient for him; that the defendant accepted and received 267,302 bricks of the quantity so delivered to him by plaintiff, but wholly failed and refused to accept or receive the remainder thereof, and that by reason of such failure and refusal to accept and receive the same the plaintiff was compelled to and did sell the same in such quantities as he could for the best price that the same would bring, of which the defendant had notice, and that by reason of the failure and refusal of defendant to perform his said contract the plaintiff has sustained damage in the sum of $795.82. The answer of the defendant in substance denies that the plaintiff performed the conditions of the contract on his part; admits that the defendant received and accepted 266,792 brick from the plaintiff; alleges that on or about April 4 1890, plaintiff and defendant mutually agreed that said contract should be determined and canceled, and accordingly settled and determined the same, and mutually agreed that the settlement then and there had should be considered as a satisfaction in full to both the plaintiff and defendant of all demands and obligations, and of all duties arising under or flowing from the said contract in any manner whatsoever, and sets forth a counter-claim for an alleged failure to deliver the brick at the time agreed upon by and between the plaintiff and defendant. Upon the issues raised by the pleadings a trial by a jury was had, resulting in a verdict and judgment for the plaintiff. The defendant appeals.

At the trial the defendant requested the court to instruct the jury to the effect that the parties to a written contract, such as the one sued upon in this case, could, after the same had been partially performed, mutually agree that the same should be canceled and at an end, and that each party should be released from all obligations thereunder; that such an agreement for the annulment and rescission of such a contract need not be in writing; that if the jury believe from the evidence that such an agreement for the annulment or rescission of the contract set out in the plaintiff's complaint was made as the defendant in his answer alleges was made, then the parties would be bound by such an agreement, and the jury must find for the defendant; that if the jury believe from the evidence that the plaintiff and defendant, as alleged in the affirmative defense pleaded in the defendant's answer, orally agreed between themselves that the contract set out in the plaintiff's complaint...