Tichnor Brothers v. Joseph Evans

• Decision Date: 25 February 1918
• Citation: 102 A. 1031,92 Vt. 278
• Parties: TICHNOR BROTHERS v. JOSEPH EVANS
• Court: Vermont Supreme Court

102 A. 1031

92 Vt. 278

TICHNOR BROTHERS v. JOSEPH EVANS

Supreme Court of Vermont

February 25, 1918

Special Term at Rutland, November, 1917.

ASSUMPSIT. Plea, the general issue. Trial by court at the June Term, 1917, Bennington County, Slack, J., presiding. Judgment for plaintiff. Defendant excepted. The opinion states the case.

Affirmed.

Holden & Healy for defendant.

Collins M. Graves for plaintiffs.

Present WATSON, C. J., HASELTON, POWERS, TAYLOR, and MILES, JJ.

OPINION

POWERS

In the spring of 1914, the plaintiffs, through their traveling salesman, Pierce, sold the defendant a bill of goods which included the post card sets here in controversy. At the time of the sale, Pierce told the defendant that if he would buy the sets at the price named, he, Pierce, would not sell like sets to any one else in the town. Upon this assurance, the defendant made the purchase. The plaintiffs did not keep this agreement, but at sometime during the following winter, they sold similar sets to one of the defendant's competitors doing business on the same street. The defendant learned of this about the first of June, 1915, but said or did nothing about it until some two years later and just before the trial below. The suit is brought to recover the balance due on the goods sold, and is defended on the ground that the plaintiffs, having broken the contract in the particular named, are not entitled to recover anything under it.

The trial below was by the court, and it is recited in the findings that there was no evidence from which a determination could be made as to the amount of damage the defendant had suffered by reason of the above mentioned breach of the contract by the plaintiffs. Therefore, the court assessed such damage at one dollar, deducted it from the amount due the plaintiffs, and rendered judgment for the latter for the balance, with interest thereon. To this the defendant excepted. So the only question before us is: Were the plaintiffs entitled to recover anything on the facts found?

The defence is predicated upon the doctrine, frequently approved by this Court, that a breach that goes to the essence of the contract operates as a discharge of it. This rule will not avail the defendant. It is not every breach that goes to the essence. It gives rise to an action for damages, but it does not necessarily justify a refusal to perform. Where, as here the stipulation goes only to a part of the consideration, and may be compensated for in damages, its breach does not relieve the other party from performance. In such cases, the broken promise is an independent undertaking and not a condition precedent. Kauffman v. Raeder, 108 F. 171, 47 C.C.A. 278, 54 L.R.A. 247; Lowber v. Bangs, 2 Wall. 728, 17 L.Ed. 768. See Rioux v. Ryegate Brick Co., 72 Vt. 148, 155, 47 A. 406. In order to operate as a discharge or give rise to a right of recission, the partial failure to perform must go to the very root of the contract. Chamberlin v. Booth, 135 Ga. 719, 70 S.E. 569, 35 L.R.A. (N.S.) 1223. Keenan v. Brown, 21 Vt. 86, is a...