| Ark. | Dec 14, 1908
(after stating the facts.) First. The burden of proof is upon the appellee to show that it is entitled to recover. Therefore it must show that it had complied with the terms of •the contract on its part in the particulars in which appellant ah leges that it violated the terms thereof, and it must further show that appellant breached the contract on its part, giving the appellee the right to treat the contract as rescinded, and to sue for the damages resultant. It will be observed that appellee seeks to recover only for amount alleged to be due for doors and sash furnished. It does not ask to recover for loss of profits. Appellant says in its brief “that it had ample excuse in fact and in law for not paying the draft, and it avers that in hardly any respect did the appellee comply with and fulfill its obligations to appellant under the terms of the contract.” But if there were any breaches of the contract on the part of appellee other than those mentioned in appellant’s cross complaint, it has failed to set them up, and has therefore waived same. Then the first question is, did appellee violate the terms of its contract in failing to fill the orders for the 46,300 windows and 7,862 doors ? The uncontroverted proof shows that these could not have been manufactured by appellee after they were ordered, in the usual course of trade, before the year 1904 had expired. It would have taken some five months to manufacture same, and these orders were sent and received after the first of December, 1904. The contract expired with the year 1904. The contract contemplated the manufacture of the sash and doors by appellee during the year 1904. Appellee manufactured the lumber products it sold. Appellant fully understood this, and must be held to have contracted with appellees accordingly. Therefore appellant could not insist on appellee’s filling orders that appellant delayed in sending until it was too late for same to be manufactured by appellee In the usual course of its business. Any other construction of the contract would be unreasonable. For if appellant could have delayed till the last day •of December, 1904, in sending in its orders for the doors and windows, it was possible for it to have kept appellee manufacturing same during the year 1905, as well as “during the year 1904.” The language of the letters evidencing the contract does not warrant such construction, and certain letters of appellant in the record, practically asking an extension of the contract of 1904 into the year 1905 on the same terms as .to the doors, show that appellant itself understood that the contract for filing its orders expired with the year 1904. So we are of the opinion that the evidence warranted the finding of the court that “the plaintiff (appellee) fully performed all things required of it by the contract.”
On the other hand, appellant, while urging with zeal that appellee fill its orders for sash, treated with apparent indifference the provision which bound it to take at least 7,500 doors during the year 1904. The contract called for the manufacture of both sash and doors. Appellant could not insist on the one and reject the other, yet the proof shows that as late as November 17, 1904, appellant had only ordered 1851 doors, and there was no acceleration of appellant’s movements in this particular until its request to be allowed to send in specifications for doors to be delivered in 1905 had been refused. The delay of appellant to send in the orders and specifications for doors until it was too late for them to be manufactured and delivered during the life of the contract was tantamount to a failure or refusal to take the number of doors appellant was bound to take. Although repeatedly urged to do so, appellant took no heed of the requirements of the contract on its part to order the doors in time, and this conduct on its part, it seems to us, was in violation of both the letter and spirit of the contract. It was very unequal and unfair to appellee. When we consider this fact in connection also with the fact that appellant, although urgently requested, neglected to meet its payments as the contract required, and allowed large amounts to become past due, we must conclude that appellant is not without fault. Certainly, appellant was in no attitude to.be insisting on the other party to the contract “giving bond for its good behavior,” so to speak, before appellant would do what the contract required on its part. But appellee agreed to waive these breaches and to fill appellant’s orders, notwithstanding the contract had expired, if appellant would pay the amount past due.
Second. The appellant refused payment of this amount, or indeed of any amount which it admitted to be due under the contract, unless appellee would give assurances that it would do what it promised, delivering to appellant bill of lading for two cars of sash.and doors. Did this constitute such a breach or abandonment of the contract on the part of appellant as would justify appellee in treating the contract as rescinded except for the purpose of declaring on it for amount that was past due?' The precise question was ruled in the affirmative in Harris Lumber Co. v. Wheeler Lumber Company, post p. 491, and authorities are there cited to sustain the doctrine announced. We are aware that a different rule obtains in other jurisdictions, and we are cited by the learned counsel for appellant to the exhaustive and well-considered opinion of the Supreme Court of Michigan in West v. Bechtel, 51 L. R. A. 791, where the authorities, English and American, are reviewed, and just the opposite conclusion is reached to the one we have announced. We have carefully considered this case and'Other cases cited in appellant’s brief, among them the case of Lake Shore & Michigan Southern Ry. Co. v. Richards, 30 L. R. A. 1, where there is a very extended and valuable note on the “right to rescind and abandon contract because of other party’s default.” In the latter case, although upon a different state of facts, the court announced this principle, quoting syllabus: “A breach of contract which will justify the party not in default .in abandoning performance and suing for damages on account of a breach by the other -need not be of such a character as to render the further execution of the contract by him impossible; but if the other party refuses to treat it as subsisting and binding upon him, or by his acts and conduct shows that he had renounced it, and no longer considers himself bound by it, there is in legal effect a prevention of performance by the other party.” This principle is sound, and, as we view the facts of the case at bar, is applicable here. In King v. Faist, 161 Mass. 449" date_filed="1894-05-28" court="Mass." case_name="King v. Faist">161 Mass. 449, the facts were that “by the terms of a contract for the sale and delivery of a quantity of flour, the vendor was to ship the flour specified as the vendee might direct, drawing upon him demand drafts for the flour shipped, and the vendee was to take out the flour by a certain date and to honor the drafts. A month before the time limited for withdrawing the flour the vendee wrote to the vendor, “Before we pay any more drafts we want some assurance from you that you will make good any claims on acount of quality,” and stated orally to the agent of the vendor that he would pay no future drafts without some guaranty to protect him in case flour should on arrival prove deficient in quality and he returned draft of the vendor unpaid. The vendor thereupon wrote: “We are not going to send any more flour.” It was held “that the vendor had a right to rescind the contract, the vendee having, without justification, declared his intention not to perform it, and that the letter of the vendor was an effectual rescission, and relieved him thereafter from all obligation under the contract to deliver the flour.” As to whether or not there has been a breach of contract by one of the parties to it that will warrant the other in treating it as abandoned will depend upon the facts of each particular case as they may arise. But we are of the opinion that the doctrine we have announced in this and the case of Harris Lumber Co. v. Wheeler Lumber Co., supra, is sound and based on better reason that a contrary rule grounded on similar facts. The doctrine, too, is but in line with Miller v. Thompson, 22 Ark. 258, where we held that “a refusal by one party to perform his part of a contract justifies the other in treating it as rescinded, and authorizes him to sue in general indebitatus assumpsitand with Ward v. Kadel, 38 Ark. 174" date_filed="1881-11-15" court="Ark." case_name="Ward v. Kadel">38 Ark. 174, where we said: “Where there is a mutual contract for the performance of successive acts, the refusal upon one side to perform will justify the other party in treating the contract as rescinded.” See also the recent case of Spencer Medicine Co. v. Hall, 78 Ark. 336" date_filed="1906-04-07" court="Ark." case_name="Spencer Medicine Co. v. Hall">78 Ark. 336. In that case Judge McCuruoch quoted the language of Coleridge J., in Franklin v. Miller, 4 A. & E. 599 as follows: “Each load of straw was to be paid for on delivery. When the plaintiff said that he would not pay for the loads on delivery, that was a total failure, and the plaintiff was no longer bound to deliver. In such a case it may be taken that the party refusing has abandoned the contract.” See also Wiegel v. Boone, 64 Ark. 228" date_filed="1897-06-26" court="Ark." case_name="Wiegel v. Boone">64 Ark. 228; Missouri Pacide Ry. Co. v. Yarnell, 65 Ark. 320" date_filed="1898-05-14" court="Ark." case_name="Missouri Pacific Railway Co. v. Yarnell">65 Ark. 320.
Third. Upon the whole record the judgment of the court is clearly right, and it is therefore affirmed.