36 Wash. 287 | Wash. | 1904
In this action the appellant sought to recover from the respondent $43,595.78, as damages for a breach of a contract In its complaint the appellant alleged, in substance, that, for some years prior to the 10th day of September, 1892, it had extensive business dealings with respondent, during the course of which it became indebted to the respondent in the sum of $10,666.66 on its own account, the sum of $6,519.94 on account of notes discounted by the respondent which had not been paid by the makers' thereof, and the further sum of $10,570.98 on account of notes upon which it was an accommodation endorser; that it owned .at such time a large amount of real property of the then value of $101,250, but upon which there were sundry mortgages which, taken together, and with the indebtedness above mentioned, aggregated the sum of $43,988.22; that on the date above named the appellant and respondent, at the request of the respondent, mutually agreed to settle up and discontinue their business relations; that, during the course of such settlement, differences arose between them as to such settlement, and the respondent threatened the appellant with suit; that it was also threatened with suit by certain of the mortgagees holding mortgages upon its real property; and that, “for the purpose of arriving at a compromise and settlement of all the liabilities of plaintiff to defendant, and of all
It alleged that the conditions of the agreement which were to be performed on the part of the appellant, as well as those numbered 1, 2, 3, and 5, on the part of the respondent, were oral;- that those numbered 4 and 1 were in writing, while that numbered 6 was partly in writing and partly oral. It alleged, also, that the appellant performed all of the agreements on its part to be kept and performed; that the respondent failed to keep its part of the agreement in that it refused to pay a cer
It was further alleged that the respondent entered into a conspiracy with one Deming and others, for the purpose of avoiding the payment of the judgment, and that, to harass and embarrass the respondent, and thereby make- it pay the judgment, it instituted a suit for the purpose of securing a rescission of the sale of the note and mortgage from Deming, who formerly owned it, to "Wheeler, who was plaintiff in the action in which the judgment was recovered, making the appellant a party defendant therein, compelling it to appear and procure a dismissal of the action as to itself.
On the motion of the respondent, the court struck á portion of the allegations of the complaint, whereupon the respondent, after the appellant had refused to amend, answered as to the remainder. It admitted that it had contested the payment of the note and mortgage mentioned in the complaint on the theory that it was not obligated to pay the same, but averred that judgment had been given against it in spite of such contest; and further pleaded with reference thereto that the judgment had been fully paid by it before the commencement of the pending action, in part by a seizure, and appropriation to satisfaction of the judgment, of its money by the sheriff who had a writ of execution in his hands for the collection of tire judgment, and by a voluntary payment on its part of the balance.
The reply of the appellant admitted the seizure by the sheriff of the money of the plaintiff in satisfaction of the mortgage judgment, and its final application to the satisfaction thereof, but reiterated its statement to the effect that a contest was instituted by the respondent
From the ioregoing statement it will be observed that the complaint was drawn on the theory that, because the respondent failed to keep that part of its agreement wherein it covenanted that it would not sue or permit the appellant to be sued on any of the indebtedness mentioned in the contract, the appellant had the right to rescind the contract in part, and recover as damages the consideration given for the violated portion of the agreement, regardless of the question of the amount of damages it had suffered because of the breach, or whether it has suffered damages on account thereof at all.
But we think the appellant has mistaken its remedy. When a contract is divisible into separata or distinct parts, equity sometimes permits the injured party to rescind, on equitable terms,' one such part, while adhering to another independent part; but where the contract is an entirety, or where there is but one entire consideration for a number of conditions, the contract must generally be rescinded as a whole, if rescinded at all. There can be no partial rescission and a refunding of a portion of the consideration, unless it be in an extreme case where there is no possible remedy other than through such a proceeding. The conditions shown in the complaint before us do not call for any such extreme remedy. For the breach of the condition complained of here, the
! It is said, however, that the complaint contains averments sufficient to show a right to nominal damages, and that the judgment must be reversed because the trial court did not permit a recovery for nominal damages. But we have held that this court will not, where the sole object of the action is the recovery of damages, reverse a judgment because the court erroneously failed to direct judgment for nominal damages. Johnson v. Cook 24 Wash. 474, 64 Pac. 729. Whether the plaintiff .does, or does not, recover, affects only the question of costs, and the appellate court will not entertain an appeal for the sole purpose of determining, who is entitled to costs in the court below. The judgment is affirmed. ¡
Mount,. Dunbab, Andebs, and Hadley, JJ., concur.