J. L. Owens Company, a Corp. v. Doughty

• Decision Date: 19 November 1906
• Citation: 110 N.W. 78,16 N.D. 10
• Court: North Dakota Supreme Court

110 N.W. 78

16 N.D. 10

J. L. OWENS COMPANY, A CORPORATION, v. THOMAS DOUGHTY

Supreme Court of North Dakota

November 19, 1906

Appeal from District Court, Foster County; Burke, J.

Action by the J. L. Owens Company against Thomas Doughty. Judgment for defendant and plaintiff appeals.

Reversed and remanded.

Judgment reversed, a new trial granted, and cause remanded.

Turner & Wright, for appellant.

One seeking to rescind must proceed promptly and bring his notice of election home to the other party. Davis v. Reed, 37 F. 418; Lawrence v. Dale, 3 Johns. Ch. 23, 71 L.Ed. 529; Sweetman v. Prince, 26 N.Y. 224; Bennett v. Glaspell, 107 N.W. 45, 15 N.D. 239; Grymes v. Sanders, 93 U.S. 63, 23 L.Ed. 798; Tarington v. Purvis, 9 L. R. A. 607.

T. F McCue, for respondent.

Where one party to a contract fails to perform his part, the other party thereto may treat it as at an end. Barrett v Austin, 31 P. 3; Lake Shore Ry. Co. v Richards, 152 Ill. 59; Seymour v. Detroit Copper Mills, 22 N.W. 317.

MORGAN, C. J. KNAUF, J., concurs. ENGERUD, J., did not take part in the decision.

OPINION

MORGAN, C. J.

Action on a promissory note for the sum of $ 1,010.50 given for the purchase price of a carload of fanning mills sold and delivered to the defendant. When the sale of the machines was made, the following special agreement was entered into between the parties as a part of the written contract: "J. L. Owens Company agree to furnish canvasser to sell these mills and guarantee that said mills will be sold in four months of peddling, and at the expiration of four months all mills unsold to be sold at the expense of J. L. Owens Company. Thomas Doughty to pay said man's expenses and salary for four months, or until he discharges him. Gilbert Glauke to be the canvasser. Salary of said man to be $ 50 a month and expenses. Man to be paid only until mills are sold, or until Thomas Doughty wishes to take the responsibility of the sale of said mills, when he can discharge him; salary and expenses paid by Doughty not to exceed four months."

The answer alleges that Glauke was not furnished to the defendant as a canvasser and salesman of the mills, and that the mills were not sold within four months, in consequence thereof. That plaintiffs furnished another canvasser who was incapable of selling said machines and only sold 10 of them during about 60 days, and voluntarily quit canvassing in about 60 days. It is also alleged that the furnishing of said Glauke as a canvasser constituted the inducement for the purchase of said mills by defendant, and in consequence of the failure of said plaintiff to furnish him as a canvasser, the consideration for the contract has failed, and that defendant has on hand 28 of said fanning mills, and that the same have at all times been held subject to the order of the plaintiff. The answer further alleges that "defendant has at all times requested plaintiff to take said mills, and the defendant now tenders said 28 mills to the plaintiff. Defendant also pleads a counterclaim for damages alleged to have followed the breach of said contract by plaintiff. Such damages consist of wages paid to the canvasser furnished for 60 days, his board and team hire, in all amounting to the sum of $ 340. Further damages are claimed based upon the following contentions: The machines were not sold during the four months limited in the contract. That defendant sold 22 of them, and claims $ 10 per machine sold by him as a reasonable compensation therefor. Further damages are pleaded as a counterclaim growing out of the fact that plaintiff did not remove said 28 mills from the defendant's possession for two years, and that the reasonable value of their storage and for insurance, is the sum of $ 100. Defendant demands judgment against the plaintiff in the sum of $ 690 with costs.

There was a trial to a jury, and a verdict was returned in defendant's favor for the sum of $ 85.50, and judgment rendered thereon. Plaintiff moved for judgment notwithstanding the verdict and the same was denied. Plaintiff appeals, and specifies numerous errors at the trial in the admission of evidence, and the giving of instructions, and the denying of the motion for judgment notwithstanding the verdict. The facts developed at the trial show that plaintiff failed to furnish the particular canvasser agreed upon, and that the guaranty that the machines would be sold in four months was not complied with. Plaintiff did furnish a canvasser who worked for about 60 days, and sold 10 mills during that time, and voluntarily quit that work at the end of that time. Another canvasser was furnished who only worked a few days. Thereafter no canvasser was employed, but defendant sold 22 of the machines himself to persons who came to his place of business at Carrington. Defendant says that he made objections to plaintiff for not furnishing the man, Glauke, as canvasser, and expressed his dissatisfaction with the one furnished. Evidence introduced on plaintiff's part tends to refute these contentions.

A material question involved on this appeal is whether the defendant rescinded the contract. Defendant claims that the answer sets forth facts constituting an absolute rescission, based on the following allegations: "That defendant has on hand 28 of said fanning mills, and that the same have at all times been held subject to the order of the plaintiff. That defendant has at all times requested plaintiff to take said mills, and the defendant now tenders said 28 mills to the plaintiff."

The testimony shows that defendant told plaintiff's agent that the machines were his machines, and subject to his order, but this was not done until many of them had been sold. There was no return of any of the mills. The contract did not provide for the mode by which it could be rescinded. The provisions of the statute must therefore control and it provides that as a condition of a rescission that everything of value received under the contract must be restored or offered to be restored, and that the rescission must be promptly made. After defendant stated to plaintiff's agent that the mills were his mills, and subject to his order, no change was made in the possession of the mills. They remained at the same place as before. Defendant continued to sell them as opportunity presented itself. The contract was thereby ratified, and continued in force. If it should be conceded, although unwarranted, that plaintiff refused to accept the mills, when told that they...