Wells v. Gaty

• Decision Date: 31 July 1844
• Citation: 8 Mo. 681
• Court: Missouri Supreme Court
• Parties: WELLS v. GATY, MCCUNE & GLASBY.

8 Mo. 681

WELLS

v.GATY, MCCUNE & GLASBY.

Supreme Court of Missouri.

July Term, 1844.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

PRIMM, TAYLOR and LESLIE, for Plaintiff. The only question of importance presented by the record in the case, is the action of the court below in directing a non-suit, when, from the evidence on trial, it appeared that the plaintiff's cause of action originated in a contract entered into by him and another. The plaintiff seeks to recover, in common assumpsit, a sum of money received by defendants, in pursuance of a contract, to build a boat or part of a boat for him and one Wetmore, which contract was by the defendants abandoned, made null and void, or so neglected on their parts as to give plaintiff the right to rescind the same, either of which, as I conceive, presents the same question of law for the consideration of this court. The evidence shows, that the money paid the defendants on the contract was the individual money of the plaintiff, and the objection to his recovering it in this action as is ruled by the court below, that when defendants received it, it was received as the money of the plaintiff and Wetmore, and must, in law, be recovered back by a joint action. The same reasoning that would support such a proposition would necessarily require a special action on the contract, either in covenant or assumpsit, according to its legal form. The contract being void, as to the right of the defendant to hold the money paid in pursuance of it, or, in other words, being no defense to a recovery, cannot, it would seem, govern as to who should sue, upon a point of non joinder of parties plaintiff, without settling the law to be, that a special action on the original contract is the only legal remedy. This is contrary to all the decisions, and among many others, against the following: 2 Carr & Payne, 286; 4 Bing. 5; 12 Johns. 363, 274; 5 Johns. R. 85; 5 Mass. R. 199; 13 Mass. R. 139. The nature of the action and the legal condition of the parties is changed from what they were under the original contract, and the law, and the reason of the law, says with clearness and simplicity to the defendant, you now hold the money independent of and contrary to the contract, and to the plaintiff's use, and he hath his plain action to recover it. If plaintiff's co-contractor had actually paid a moiety of the money, he could, by separate action, recover it back. 6 Wendell, 263.

SPALDING and TIFFANY, for Defendants.

I. On the case as made, it was right to instruct the jury that the suit should have been brought in the name of both Wetmore and Wells. 1. If there are too many or too few plaintiffs, it is a ground of non-suit on the general issue. 1 Chitty's Pl. 5-9; 1 Bos. & Pul. 75, in notes; 2 Johns. Cases, 382; 6 Mass. R. 460. “The want of proper parties in actions on contract is an exception to the merits, and to be taken advantage of on demurrer, in bar, and on the general issue, but not by plea in abatement.” 2. The written contract was with Wells and Wetmore, as party of the second part, and the agreements to pay were by them as one party, and the promise to build the boat was to them jointly as one party; any suit, therefore, for the violation of that contract must have been brought by both jointly. 3. The payments made, to-wit: the cash payment of $1,000 made to the parties of the first and second part, and the second payment afterwards made, was in law a payment by the party of the third part, that is, by Wells & Wetmore, although, as between them, Wells may have raised the whole of the money out of his private resources. Suppose each had contributed a portion of that and the subsequent payment, would it have been the individual payment of each for his portion? It matters not how the receipt is written, whether in the name of one or both. 4. In bringing the suit now, to recover back the money paid, it is on the ground that the contract is rescinded; for if the contract were considered in force, the suit would have been upon it; and in suing on this contract, the action must have been in the name of Wells & Wetmore, joint covenantees. 5. If the contract be rescinded, an implied assumpsit is held by plaintiff to arise, to refund the money. But in whose favor does it arise? Does it arise in favor of the party of the third part, Wells & Wetmore, or does it arise in favor of Wells individually, for what he may have paid, and in favor of Wetmore, for what he may have paid?--and will the court enter into the state of accounts, between Wells & Wetmore, in this manner? 6. The money, when recovered, may not belong entirely to Wells; the proof is, that he was to advance money, and Wetmore contribute services. Suppose the contract rescinded by the fault of the defendants, is Wells to have back all the money advanced by him, and yet Wetmore to lose his services? And can Wetmore bring a suit individually, to recover for his services lost by rescinding the contract? On the contrary, are they not one party (according as designated in the contract) and bound to sue and recover in their joint names, adjusting the amount of the recovery between themselves? They are quasi partners in this matter. 7. But the contract was not rescinded, and therefore Wells could not sue in this form of action; for, even admitting facts to have existed to authorize the contract to be rescinded, yet it has not, in fact, been rescinded. The defendants have not claimed to have it rescinded. Wetmore has not assented to having it rescinded, and it is not in the power of Wells alone to rescind it; for, admitting (what is the law) that, in certain cases, one party can rescind a contract for the mal-conduct of the other, yet a portion of one party cannot rescind it. If the party of the third part might have rescinded it, in the present case, yet that party has not acted. Chitty on Contracts, 275-7. 8. The party of the third part (Wells & Wetmore) were guilty of the first default, in failing to pay the installment at the time, and this caused the delay in the work. It was not in their power to rescind the contract, even if they attempted to do so. Chitty on Contracts, 275. “The right to rescind a contract vests only in the party who has been guilty of no default.” Ibid. 275. “The right to rescind must be exercised in a reasonable time, and it can be exercised only when the parties can be put in statu quo.” Long on Sales, 238-42, &c. Here Wells & Wetmore never rescinded the contract, never gave any notice that they intended to do so, but lay by and permitted the defendants to complete the work, and were themselves the first to break the contract! 3 Starkie on Ev. 1770. That if party does not rescind contract, as soon as he is made acquainted with the reason and his right to do so, he is deprived of the privilege. In the case of defect in goods sold, he must do it after sufficient time allowed for examination and trial. Long on Sales, 240.9. 7 Greenleaf, 70, Brinley v. Tibbets: If party having right to rescind contract, because not performed in time, does any act amounting to an admission of its existence, he cannot afterwards elect to treat it as void. In the present case, the boat was to be finished by the 1st of June, and it was after that day when Wells paid the second...