Foster v. Warner
| Decision Date | 09 July 1926 |
| Citation | 42 Idaho 729,249 P. 771 |
| Parties | WESLEY FOSTER, Respondent, v. A. A. WARNER, Appellant |
| Court | Idaho Supreme Court |
CONTRACTS-SICKNESS AS EXCUSE FOR NONPERFORMANCE-ADMISSION OF EVIDENCE OF SICKNESS-NOT CURED BY INSTRUCTION-SALES-DEFAULT IN PAYMENT UNDER CONTRACT-BUYER'S REMEDY FOR NONDELIVERY.
1. Sickness does not excuse nonperformance of contract according to its terms.
2. Plaintiff having rested his case, in part, on inability to complete contract because of unforeseen difficulties, of which sickness was an important part, it cannot be said that jury was not influenced by evidence of sickness, nor that instruction that sickness did not furnish excuse for nonperformance of contract was sufficient to overcome the testimony.
3. Buyer may not recover for breach of contract by nondelivery he having been first in default as to payment.
4. Contract will not be considered as giving right to forfeiture, unless intention to give it is clearly expressed.
5. Though buyer may not recover for nondelivery, he having been first in default as to payment, this does not prevent his recovery of advances on price, less seller's damages, in absence of provision for forfeiture.
APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. W. A. Babcock, Judge.
Action for damages and to recover advance payments on contract for sale of personal property. Judgment for plaintiff. Reversed and remanded.
Reversed and remanded. Costs awarded to appellant.
Walters & Parry, for Appellant.
Plaintiff seeks two inconsistent remedies. He seeks to rescind contract by recovering back money advanced as down payment and he seeks to treat contract as in force by asking for loss of profits. (2 Sedgwick on Damages, 9th ed., p. 1529, sec. 733A; Nash v. Towne, 5 Wall. (U. S.) 689, 18 L.Ed. 527; Smiley v. Baker, 83 F. 684, 28 C. C. A. 9; Seaver v. Hall, 50 Neb. 878, 70 N.W. 373; Church v. Bourne, 79 Misc. 629, 141 N.Y.S. 333; 39 Cyc. 1997, 2000; Baltimore & Ohio S.W. Ry. Co. v. Adams, 27 Ind.App. 185, 60 N.E. 1004.)
Time is of the essence of the contracts of purchase. (Hawkins v. Smith, 35 Idaho 349, at 352, 205 P. 188, and cases cited; Buster v. Fletcher, 22 Idaho 172, 125 P. 226; Settle v. Winters, 2 Idaho 199, 215, 10 P. 216; Durant v. Comegys, 3 Idaho 204, 28 P. 425; Olympia Mining Co. v. Kerns, 24 Idaho 481, 135 P. 255; Hughes Produce Co. v. Pulley, 47 Utah 544, 155 P. 337, L. R. A. 1916D, 728; Wilson v. Empire Dairy Salt Co., 50 A.D. 114, 63 N.Y.S. 565.)
When plaintiff failed to pay the balance due on the purchase price of the honey, it was the legal right of the defendant to rescind the contract and sell his honey else-where. (35 Cyc. 133, 620.)
Sickness is no excuse for plaintiff not tendering money within time. (13 C. J. 635, sec. 706; MacFarlane v. Allan-Pfeiffer Chemical Co., 59 Wash. 154, Ann. Cas. 1912A, 1180, 109 P. 604, 28 L. R. A., N. S., 314; 5 Page on Contracts, sec. 2675; Zanello v. Smith & Watson Iron Works, 62 Ore. 213, 124 P. 660.)
The buyer cannot recover price if he forfeits contract. (Hatcher v. Ferguson, 33 Idaho 639, 16 A. L. R. 590, 198 P. 680; 35 Cyc. 605.)
Sweeley & Sweeley, for Respondent.
The surrounding facts and circumstances are to be considered to ascertain the intention of the parties, as to time of performance of a contract. (Hawkins v. Smith, 35 Idaho 349, 205 P. 188.)
Where performance upon a precise date is not vital and may be compensated in damages, mere delay, in the absence of fraud or the like, will not justify the other party in abandoning the contract. (6 R. C. L. 928; Reid v. Mix, 63 Kan. 745, 66 P. 1021, 55 L. R. A. 706.)
Forfeitures are not favored, either in law or in equity. (Abercombie v. Stoddard, 39 Idaho 146, 228 P. 232; Pierce v. Staub, 78 Conn. 459, 112 Am. St. 163, 62 A. 760, 3 L. R. A., N. S., 785; King v. Seebeck, 20 Idaho 223, 118 P. 292; Harris v. Reed, 21 Idaho 364, 121 P. 780; La Shonse v. Herrick, 39 Idaho 67, 225 P. 1019; Texas Co. v. Pensacola Maritime Corp., 279 F. 19, 24 A. L. R. 1336; White v. Miller, 132 Iowa 144, 109 N.W. 465, 8 L. R. A., N. S., 727.)
The question whether the acts of the plaintiff or of Harper showed intention on their part to abandon the contracts was for the jury. (Harper v. Battle, 180 N.C. 375, 20 A. L. R. 357, 104 S.E. 658.)
The seller can claim as a forfeiture and hold the amount paid as earnest-money or as a partial payment only in a case where the buyer wrongfully refuses to carry out the contract of sale or wrongfully refuses to receive the goods when tendered. (Hatcher v. Ferguson, 33 Idaho 639, 653, 16 A. L. R. 590, 198 P. 680; 6 R. C. L. 928, sec. 312; Reid v. Mix, 63 Kan. 745, 66 P. 1021, 55 L. R. A. 706.)
Where a vendor upon a default in payment by his vendee elects to rescind the contract instead of bringing an action for damages there is no forfeiture of payments previously made but such an equitable amount thereof may be recovered by the purchaser as will restore as nearly as possible the status quo. (Pierce v. Staub, 78 Conn. 459, 112 Am. St. 163, 62 A. 760, 3 L. R. A., N. S., 785, 789, and cases cited.)
Where a contract is rescinded by either party he must restore to the other everything he received pursuant to it. (Bowman v. Ayers, 2 Idaho 431, 465, 21 P. 405; Breshears v. Callender, 23 Idaho 348, 131 P. 15.)
The defendant has not restored or offered to restore to either Harper or the plaintiff any part of the money he received. A rescission of a contract can be made by one of the parties in a case where a rescission will lie only by restoring to the other what he has received. (6 R. C. L. 936, sec. 319, and cases cited; 2 Sutherland on Damages, 4th ed., p. 2016, sec. 586; Pierce v. Staub, supra.)
On October 29, 1918, one Harper, as agent for respondent, contracted with appellant for the purchase of certain honey in two lots, and as an advance on the purchase price appellant was paid the sum of $ 330. The bases of the agreement entered into were two bills of sale executed and delivered by appellant, one of which reads as follows:
The other bill of sale was for sixty cases of honey and identical in form as the one set out above, except that the word "on" was used in stead of "to" just preceding "railroad car," and the amount stated as received in partial payment was $ 180.
Payment of the balance on the purchase price was not made within the thirty-day period; the appellant thereafter sold the honey elsewhere; and an action was subsequently commenced by respondent to recover the $ 330 advanced, together with loss of profits alleged to have resulted by reason of the failure of appellant to make delivery of the honey. The jury returned a verdict for respondent in the sum of $ 429.50, and from the judgment entered thereon appellant has prosecuted an appeal.
Among the assignments of error, it is contended that the evidence is insufficient to sustain the verdict and judgment entered thereon, in a number of particulars stated. The record shows that respondent resided at Boulder, Colorado, and that Harper, his brother-in-law, acted as his agent in the purchase of these and other lots of honey from persons living in the vicinity of Buhl. The contract with appellant for the purchase of his honey was made on October 29, 1918, and it was understood that the payment of the balance due on the purchase price was to be made within thirty days from that date, delivery of the honey to or on railroad car to be furnished by respondent's agent to be made upon such payment. On November 21, 1918, Harper (with whom appellant was dealing exclusively) was called to Nampa, on account of sickness in his family. While in Nampa and before the expiration of the thirty-day period Harper wired to appellant stating that he had arrangements nearly completed for taking care of the honey and payments that week, but that on account of being in Nampa he might be delayed some and would write appellant when and where to deliver the honey. On November 30th appellant, together with others who had contracted to sell their honey to Harper, wired him as follows:
"Honey ready to ship we must have balance due today otherwise your contract cancelled." On the same day (November 30th) Harper wired appellant that on account of the sickness in his family he could not "get to bank to handle business" and that he was at the mercy of appellant; and again on the same day, upon receipt of information that the money for payment of the balances due was available, Harper wired appellant that he was trying to make arrangements to settle for the honey "next week," that the money was in a bank in Twin Falls. At this time Harper sent on the contracts covering the purchases made to one Carmichael at Filer, whom he had left in charge of his affairs, and instructed him as to taking care of the payments.
There is no dispute as to the facts that it was understood and agreed by all the parties concerned that payment of the balance due on the purchase price was to be made within thirty days from the date of the bills of sale; that railroad car was to be furnished upon or to which delivery of the...
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