McLaughlin v. McLaughlin
Before: Hall
Synopsis
Action for Breach of Contract to But Interest in Business— Support of Findings Against Defenses—Option to Purchase— In competen ct—Rescission.—In an action to recover damages for breach of a certain and unambiguous contract to purchase plaintiff’s interest in a drug-store business, conducted on defendant’s property, it is held that the findings of the court against each and all of the defenses set up in the answer in avoidance of the contract, viz., a mere option to purchase, defendant’s incompeteney to contract, and that the defendant rescinded the contract within a reasonable time, are abundantly supported by the evidence.
Id.—Absence of Right to Rescind.—The defendant being bound by the contract, and competent to contract, and it not appearing that the contract was entered into by him through mistake, fraud or because of any other reason that would make it voidable, and it further appearing that he never gave any notice of rescission, other than merely to state that “if he could get out of it, he would not keep his contract,” he had no right to rescind, and effected no rescission.
Id.—Support of Finding and Judgment as to Damages—Pleading— General Damages.—It is held upon a review of the evidence that the finding as to the amount of damages sustained by the alleged breach of the contract is supported by the evidence, and that the damages so proved and found, substantially in the language of the complaint, which sought the recovery of general damages only, consisting of the natural and ordinary damages resulting from the breach of the contract, were sufficient to support the judgment rendered therefor.
Id.—Suit bt Plaintiff for Dissolution of Partnership—Absence of Estoppel to Sue for Breach of Contract.—The fact that after breach of the contract of defendant to purchase plaintiff’s interest in the business, the plaintiff brought a suit to dissolve the partnership and to have a settlement of its affairs, constitutes no estoppel of the plaintiff from claiming damages for defendant’s breach of contract to purchase plaintiff’s interest in the business. The two actions had no connection with one another; and it appearing that the breach of contract had accrued before the suit for dissolution was brought, it was unaffected by that suit or the result thereof.
HALL, J.
This is an appeal by defendant from a judgment in favor of plaintiff and against defendant for the sum of $355.
Plaintiff, defendant and one Juanita Dowd, who are sisters and brother, were, on the third day of October, 19[09], equal copartners in a certain drug-store or business conducted by them upon property owned by defendant.
On said day plaintiff and defendant entered into an agreement in writing, signed and executed by them in duplicate, wherein defendant agreed to purchase from plaintiff, and plaintiff agreed to sell to defendant, the interest of plaintiff in said business for the sum of $750, which by the terms of the contract was to be paid by defendant to plaintiff within forty days from the date of said contract. Defendant did not pay said money or any part thereof within said forty days, or at all, but refused to perform said contract, and repudiated the same.
This action was brought on the eighteenth day *of February, 1910, to recover damages for the breach of said contract on the part of defendant in refusing to pay for and purchase said interest of plaintiff in said business as he had agreed.
The contract is perfectly certain and unambiguous in its terms, and, as stated in appellant’s brief, “The answer of defendant .admits the execution of the contract, but seeks to avoid the same upon the following grounds:
“1. The contract alleged does not express all of the agreement of the parties in that the contract was intended to be an option to purchase and not an absolute contract to purchase.
“2. That the defendant was not competent to execute the contract, and therefore the same was void.
“3. That the defendant rescinded the contract within a reasonable time, after discovering that the same did not express the contract as he understood it. ’ ’
Defendant also pleaded that plaintiff, after the expiration of forty days and before the commencement of this action,
[701]
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