16 Utah 177 | Utah | 1898
(after stating tbe case):
In view of the cause of action set out by tbe defendant in bis cross complaint, and of tbe conceded facts of the case, and those as to wbicb there is no room for controversy, did tbe court err in finding the apparatus was not accepted, or that tbe contract was rescinded, and in giving judgment against the plaintiff for $1,627.47, tbe amount paid on tbe contract, and interest? Tbe defendant, in bis cross complaint, admits tbe contract set out in the plaintiff’s complaint, and alleges that he paid the $1,371.48 on tbe contract, but alleges a breach by the plaintiff in not furnishing a complete and perfect beater as it required, alleges damages in tbe sum paid, and other damages specified aggregating the sum demanded. A rescission or forfeiture of tbe contract is not alleged. Tbe cross complaint is for damages for its breach. No election to rescind and cut off plaintiff’s rights is averred. Where an action is based upon tbe rescission of a contract and a forfeiture of tbe rights of a party to it, tbe election to rescind must be specifically and clearly averred. After a contract bas been recognized and acted upon by tbe parties to it, tbe law does not favor a rescission
The contract also provided that the title to the heater should remain in the plaintiff until the purchase price should be fully paid, and that, in case of default, the plaintiff might take possession, and remove the samé, and retain any part of the price received. This made the contract a conditional sale, and the condition was for the benefit of the plaintiff. It had the right to waive it in case payment should not be made, and regard the title as in the defendant if accepted by him. It was not in the power of the defendant to take advantage of the condition, and regard the title as in the plaintiff, and rescind the contract, or maintain he had not accepted the heater, and refuse to pay for it, for the same reason. The plaintiff did not claim the benefit of the condition, but elected to treat the title as in the defendant, and bring suit for the balance due on the purchase price. The defendant relied upon the contract in his cross complaint, and alleged damages amounting to $3,721.48 for its breach, but on the trial he expressly elected to rely upon a rescission of the contract, and to waive any claim for damages, without amending his cross complaint. The court found that the plaintiff did not comply with the contract; that defendant never accepted the heating apparatus; and that defendant, before commencing the action, notified plaintiff that the apparatus was subject to its order, and demanded a return of the amount paid. The judgment was based upon the non-acceptance of the heater and the election of the defendant to rescind the contract and to demand the amount paid upon it. The facts upon which the defendant relied in his complaint and on the trial, and those upon which the court based its judgment, when all considered together, are somewhat uncertain and con