193 P. 1045 | Or. | 1920
There are very many assignments of error, but substantially they are grounded upon the proposition urged by the defendants that the plaintiff is seeking to recover upon a contract which he has not performed on his part; further, that because the defendants pledged to the plaintiff as collateral for the security of the note, the stock they bought, they had received nothing from him, in consequence of which the' consideration of the note wholly failed, giving rise to the corollary that it was not necessary for the defendants to give notice of the rescission of the contract.
The defendants chose to deal with the plaintiff separately and put him in a position where he could sue alone. If all of the stock had been delivered to the defendants and they had given to each of the former stockholders their ■ note in compliance with the contract, no one would claim that all holders of defendants’ notes must join in a single action on all
“If a party means to rescind a contract because of the failure of the other party to perform it, he should give a clear notice of his intention to do so, unless the contract itself dispenses with such notice, or unless notice becomes unnecessary by reason of the conduct of the parties”: 13 C. J. 619; Hennessy v. Bacon, 137 U. S. 78 (34 L. Ed. 605, 11 Sup. Ct. Rep. 17); St. Regis Paper Co. v. Santa Clara Lumber Co., 186 N. Y. 89 (78 N. E. 701).
The answer is utterly silent about notice, or any excuse dispensing with it, within the meaning of the rule thus laid down. The answer is defective as a plea of rescission.
The defendants do not pretend to count upon damages as a counterclaim against the note. Failing in pleading rescission, if they would recover damages, they must allege the breaches of thé contract by the plaintiff upon which they rely. The effort of the answer is to show that the plaintiff and his associates accepted the renunciation of the contract by Eccles and took possession of the property. This was denied by the plaintiff, and the jury by its verdict has found that his position is correct.
The judgment was right, and must be affirmed.
Affirmed.