Drew v. Claggett

| N.H. | Dec 15, 1859

Fowler, J.

It is well settled in this State that the report of an auditor is prima facie evidence that its findings are correct, and that it makes a case upon which the party in whose favor it is may well rest, until its conclusions are impeached, controlled, or overthrown by other evidence. The ruling of the court below upon this point was, therefore, strictly correct. Mathes v. Bennett, 21 N. H. 188; Shouter v. Swindles, 37 N. H. 559.

So, too, the authorities are clear, explicit and uniform, that where money has been paid, goods sold and delivered, or services rendered, upon a contract executory on the part of him who receives the money or goods, or for whom the services aré performed, and he rescinds the contract, or wholly fails to comply with its requisitions, or refuses to perform an essential part of the entire contract, the injured party, who has paid the money, sold and delivered the goods, or performed the services, has an election, either to bring an action upon the contract, to recover damages for its breach, or to consider the contract as rescinded, and bring his action of general indebitatus assumpsit, to recover back the money, or to recover the value of the goods sold and delivered, or of the services rendered. Luey v. Bundy, 9 N. H. 298, and authorities; Deming v. Comings, 11 N. H. 474; Snow v. Prescott, 12 N. H. 535; Brown v. Mahurin, ante, 156; Pierce v. Duncan, 22 N. H. 18; Allen v. Webb, 24 N. H. 278.

The rulings and instructions of the court below, on the trial of the case before us, seem, therefore, to have been, in respect to the plaintiff’s right to recover notwithstanding the special contract of the parties, in exact accordance with the recognized and well established doctrines of our own court. Indeed, the jury were expressly instructed, in so many words, that the plaintiff could not recover if they found there was a special contract, unless they should also find that it had been rescinded by the defendant.

It is objected that no evidence was offered by the plaintiff, competent to be received, as tending to show a rescission of tbe contract by tbe defendant; but of this there can be no doubt. The evidence was that the defendant, five months after the contract was made, forbid the plaintiff to harvest the crops, or do anything further with the farm under the lease, at the same time giving the plaintiff notice that he had employed another man to carry it on. Nothing could tend more strongly to show an absolute refusal of the defendant to perform an essential part of the contract, that is, to allow the plaintiff to harvest the crops, from which alone, by the terms of the lease, he was to be compensated for his services in cultivating them; and this manifestly authorized the plaintiff to treat the contract as rescinded. It was an express, unequivocal act of the defendant, repudiating the contract, and refusing to comply with its essential stipulations. Luey v. Bundy, 9 N. H. 298; Allen v. Webb, 24 N. H. 278; Webb v. Stone, 24 N. H. 282.

With these impressions as to the correctness of the rulings and instructions under which the verdict was rendered, the exceptions taken thereto must be overruled, and judgment be rendered upon that verdict.

Exceptions overruled — judgment on the verdict