51 Tenn. 590 | Tenn. | 1871
delivered the ■ opinion of the Court.
This is an action of indebitatus assumpsit,' to recover three hundred and ninety dollars for money had ■ and received. The facts are as follows:
The first question that arises is, whether the contract proven was entire or separable? At the time of the contract, the cotton was in the seed. Two bales, when picked and ginned, were to be delivered to Barker, at the house of Reagan, for which the former was to pay the latter, for one bale at eighty cents a pound in Tennessee currency, and for the' other at sixty cents a pound in greenbacks. The consideration to be paid was entire, although the subject of the contract consisted of two bales, and these to be estimated in different currencies. Reagan was not bound to deliver either bale, until the consideration of both was paid according to contract. The contract was, therefore, entire and not separable.
The next question is, was the contract so far complete, as that the title to the cotton was vested in Barker? Reagan was to gin, bale and deposit the cotton for delivery, at his own house. He was not required by the contract to ascertain the weight, or to mark the bales. Whenever he deposited the two bales in his own house, ready for delivery, he had done all that he was required by
From these two propositions other legal consequences follow, on which the respective rights of the parties must be determined.
Upon the failure of Barker to carry out his contract, by paying, or tendering to pay, the balance of the purchase money, Beagan had the right either to rescind the contract, and hold the cotton as his own, or to hold it a reasonable time as the cotton of Barker, and then to sell it as Barker’s cotton, for the satisfaction of his lien for the balance of the purchase money.
If Beagan had elected to rescind the contract, upon Barker’s failure to pay, and he had then sold the cotton, he would have had no right of action against Barker for any loss on the price. In that view of the case, Barker would have had a right of action to recover back the amount he had paid.
If Beagan had elected to hold the cotton as Barker’s, and to sell it as Bai'ker’s, to satisfy the unpaid purchase money, if the net proceeds of the sale, fairly made, fell short of the price at which it was sold to Barker, he would have had a right of action against Barker for damages resulting from his breach of his contract. But in that view, Barker would have had the right to be allowed the amount he had paid.
But in the case at bar Barker has sued Reagan for the three hundred and ninety dollars paid on the cotton. It is argued, that because he was in fault in failing to perform the whole of his contract, therefore, he has no right to sue for so much
“¥e have seen that when parties make a contract which is not apportionable, no part of the consideration can he recovered on an action on the contract, until the whole of that for which the consideration was to he paid is performed. But it must not he inferred from this, that a party, who has performed a part of his side of a contract, and has failed to perform the residue, is in all eases without remedy. For, though he can have no remedy on the contract as originally made, the circumstances may be such, that the law will raise a new contract, and give him a remedy on a quantum meruit.” And, again: “ So too, if one party, without the fault of the other, fails to perform his side of the contract, in such a manner as to enable him to ■ sue upon it, still if the other party have derived a benefit from the part performed, it would he unjust to allow him to retain that without paying anything. The law, therefore, generally implies a promise on his part to pay such a remuneration as the benefit conferred on him is reasonably worth, and to recover that quantum of remuneration, an action of indebitatus assumpsit is maintainable.”
This rule is recognized and approved in Porter v. Woods, 3 Hum., 56, in which Judge Reese said: “ The principle is regarded as now well settled in England and America, 'that after the rescission and
It follows, that although Barker was in default, in failing to fulfill his entire contract, yet he was not thereby prevented from suing for the value of the benefit conferred upon Reagan by Ms part performance. It does not follow, however, that he is entitled to recover the full value of the part performance, but his recovery must be limited by the extent of the benefit conferred oil Reagan. In the language of Judge Reese: “ In such action, the defendant is entitled to abate the recovery of the plaintiff by the damages he. has sustained on account of non-performance of the plaintiff’s portion of the agreement.”
While, therefore, Barker had the right to sue for the three hundred and ninety dollars paid in Tennessee money, on the other hand, Reagan had the right to set off the damages sustained by him, by his failure to comply with his whole contract. 'We have already seen, that by the proof in the case, the damages to which Reagan would have been entitled by way of abatement or set-off, would be fully equal to the payment made by Barker.
Under a charge which, taken altogether, is not subject to just criticism, the jury found a verdict for the defendant, and we think upon the facts and the law they reached the justice of the case.
We affirm the judgment below.