McGrath v. Cannon

• Decision Date: 07 December 1893
• Citation: 57 N.W. 150,55 Minn. 457
• Parties: MCGRATH v. CANNON ET AL.
• Court: Minnesota Supreme Court

55 Minn. 457

57 N.W. 150

MCGRATH

v.CANNON ET AL.

Supreme Court of Minnesota.

Dec. 7, 1893.

(Syllabus by the Court.)

The rule that a party who has refused to fully perform his contract cannot recover for part performance applies only to entire, and not to severable, contracts, which are, in effect, separate agreements as to different subjects, although made at the same time.

Appeal from district court, Clay county; Ives, Judge.

Action on a promissory note by Dennis F. McGrath against Thomas E. Cannon and Daniel Moody. There was judgment for plaintiff, and from an order denying a new trial, defendants appeal. Affirmed.

James H. Foote and F. H. Peterson, for appellants.

Charles S. Marden and C. C. Houpt, for respondent.

MITCHELL, J.

It seems to us that there are more grounds than one on which the order appealed from might be affirmed, but we shall consider the case upon the lines upon which counsel have argued it. Accepting as true the testimony of defendant Cannon, the facts were as follows: Plaintiff was the owner of a stock of hardware, and also of a stock of lumber. Cannon was negotiating for the purchase of the hardware, and was about making a contract for it when plaintiff refused to sell it, unless Cannon would also buy the “lumber business,” or find a purchaser for it. Cannon had no desire to buy the lumber, but, in order to get the hardware, verbally agreed to buy it, or find a purchaser for it; nothing whatever being said as to terms or price. Cannon and plaintiff thereupon executed the contract, Exhibit A, which on its face purports to be a complete expression of the mutual obligations of the parties, and has reference solely to the hardware. In accordance with the terms of this contract, the parties proceeded, and took an inventory of the hardware, and upon its completion plaintiff executed a bill of sale of it to the defendants, (Moody having become interested with Cannon in the purchase,) and they made payment therefor, partly in cash and partly in two promissory notes, one of which is the note in suit. Moody attempted to testify that he paid his part of the cash on the hardware and lumber together, but nothing of the kind was communicated to plaintiff, and the evidence is perfectly conclusive that both the cash and the notes were paid or given and accepted for the price of the hardware exclusively, in exact accordance with the terms of the contract, Exhibit A. Defendants took, and still retain, possession of the hardware. On the occasion when the deal as to the hardware was closed up the defendants requested plaintiff to enter into a writing for the lumber business, and to proceed to have an inventory of the stock taken; but he refused to do either at that time, and has subsequently refused to do so at all, or to deliver the lumber to defendants, although they offered to pay him its market value. When sued on one of the notes given for the hardware, the defendants set up plaintiff's nonperformance of the contract as respects the lumber, for the purpose, as it would seem from their answer and from the evidence introduced on the trial, of counterclaiming or recouping their damages against the note, but, as now claimed in this court, as a complete defense to the action. The doctrine which defendants invoke is that to entitle a party to recover on a contract he himself must have fully performed on his part, and that when he has refused to fully perform his contract according to its terms he cannot recover for part performance. But from the leading case of Cutter v. Powell, 6 Term R. 320, down, this rule has been held applicable only to contracts which are entire, and not to those which are...