Shear v. Wright

• Decision Date: 17 February 1886
• Citation: 60 Mich. 159,26 N.W. 871
• Court: Michigan Supreme Court
• Parties: SHEAR v. WRIGHT.

26 N.W. 871

60 Mich. 159

SHEAR v. WRIGHT.

Supreme Court of Michigan

February 17, 1886

Error to Wayne.

C.D Coleman, for plaintiff and appellant.

Chas. B. Lathrop, for defendant.

CAMPBELL C.J.

Plaintiff sues for a balance alleged to be due on the price of a bull-calf sold to defendant in October, 1882. The price agreed upon is alleged by plaintiff to have been $15 and by defendant to have been $10. Six dollars is admitted to have been paid, five at first and one dollar in subsequent dealings. Four dollars according to defendant, and nine dollars according to plaintiff, remained unpaid. This sum of four dollars, as both agree, was to be paid by services for breeding purposes of a certain bull then mentioned and owned by defendant, or, at plaintiff's election, of the calf when grown. Without any fault of defendant this performance was made impossible by the death of the calf and an injury to the bull. So far as the amount of the original price is concerned, the parties are in their oaths directly at variance. There was testimony tending to show that defendant knew plaintiff supposed $15 to be the price agreed on. It is also found that on a dispute arising between them, plaintiff proposed to defendant if he would go before a magistrate and make affidavit that he was to pay only five dollars in cash instead of ten, he would forgive him the other five dollars, to which defendant assented, and offered to go, but did not do so, because plaintiff did not start to go with him. The court below having found that ten and not fifteen dollars was the agreed price, we cannot review that finding of fact, and it is of no consequence what effect this testimony might have had on the mind of any one else.

The only serious question is whether the contract was released by the impossibility of performance. While a contract may be so framed as to make the contracting party absolutely bound at all events, yet such is not the universal rule. In the present case the services agreed upon could not be rendered under the contract unless one or the other of the two animals could be had for the purpose. Their continued existence entered into the consideration of both parties as an indispensable element of performance. This being so, and there being nothing in the contract to indicate a substituted performance as within the design, the case seems to fall within the rule that under such circumstances the existence of the...