Rayfield v. Van Meter

BRITT, C. On September 4, 1890, the parties to this action entered into a contract in writing whereby plaintiff covenanted to sell to defendant certain household- furniture at the price of eighteen hundred and thirty dollars, of which price the sum of one thousand dollars was then paid and the residue was to be paid on or before September 4, 1891, plaintiff to give a bill of sale of the furniture on receiving such deferred payment; defendant received immediate possession of the goods, but agreed on his part that if he failed to pay the said balance he would restore such possession to plaintiff on demand. In due time plaintiff tendered to defendant a bill of sale and demanded payment of the said balance of eight hundred and thirty dollars; he refused payment and refused to restore the goods. On ¡November 6, 1891, plaintiff brought this action to recover said goods, and obtained possession thereof by process of claim and delivery. In a cross-complaint defendant alleged that he entered into said contract under the influence of fraud and also duress practiced by plaintiff; that she had replevied the property, and that the consideration for his promise to pay said balance had failed; he prayed that he recover the sum of one thousand dollars already paid, less such compensation to plaintiff for the use of the goods as justice might require. In August, 1893, plaintiff began selling the property, piece by piece, and so disposed of the whole of it; this for the reason testified by her that “the storage charges were very large, and the property was continually deteriorating in value.” The trial was had in August, 1895; the findings negatived defendant’s allegations respecting fraud and duress, and declared the right of plaintiff to possession of the goods at the commencement of [418]the action; the facts concerning the replevin and subsequent sale of the goods by plaintiff were found, and the court decided, as the net result, that by selling the goods after she had replevied them the plaintiff rescinded her contract with defendant, and that he was entitled to recover of her his payment of one thousand dollars, less the value of the use of the goods during the time they were in his possession, fixed at four hundred and twenty dollars; he being allowed also interest on the excess of said payment above such rental.

There was no supplemental pleading to raise the question on which the case was made to turn, viz., the effect of the sale of the goods by plaintiff after she had regained possession of them, but, as appellant makes no point on the procedure, we shall consider it as one properly presented by the record. The defendant himself put an end to the contract if plaintiff chose to so regard it. “In cases of this sort, where the question is whether the one party is set free by the action of the other, the real matter for consideration is, whether the acts or conduct of the one do or do not amount to an intimation to abandon and altogether to refuse performance of the contract.” (Lord Coleridge, C. J.,in Freeth v. Burr, L. R. 9 Com. P. 213.) Perhaps the language of the eminent chief justice was hardly sufficiently stringent in allowing that a mere intimation of such intention may dissolve a contract; but it is apparent that in this case the defendant’s purpose to refuse performance was distinctly and unequivocally evinced; his refusal to pay the deferred installment of purchase money was continued for nearly two years before plaintiff, having lawfully regained possession of the goods, made sale of them, and by his pleading in the action he repudiated any further obligation under the contract; in which respects, as the findings of the court show, his conduct was without lawful justification. By these acts the vinculum juris arising from the contract was broken, and there was nothing which plaintiff needed to rescind.