28 Ill. 493 | Ill. | 1862
It is very clear, the appellee was not in a position to rescind the contract on his part, and bring his action for the work and labor done under it. He should have demanded a deed for -the lot of ground; non constat, but the appellants would have made him a deed for the work he had done. Had they failed to give him work, and refused to give a deed on demand made, the appellee could have rescinded the contract, and recovered for the work done. In Selby v. Hutchinson, 4 Gilm. 333, this court held that “ in order to justify an abandonment of a contract, and of the proper remedy growing out of it, the failure of the opposite party must be a total one; the object of the contract must have been defeated, or rendered unattainable by his misconduct or default.” The object of this contract, so far as the appellee was concerned, was a deed for the lot. That object cannot be said to be defeated until a demand is made of a deed, and a refusal to execute it. The object is not shown to have been unattainable, no deed having been demanded.
This view disposes of the case, and necessarily reverses the judgment.
Judgment reversed
