26 Ga. App. 752 | Ga. Ct. App. | 1921
The ordinary, the sheriff, and the clerk of the superior court of Cobb county made a contract with two newspaper corporations located in the county, to publish the legal or official advertisements for the county for a term of four years, beginning in January, 1917. By the terms of the contract each one of the newspapers was designated as the official organ for the county for a term of two years, and was to receive the fees allowed by law for such service. One was to act for the first two years as the official organ in the publication of such advertisements, and the other as the official organ for the last two years. Both newspapers were to publish the legal or official advertisements for the entire four years of the contract. The newspaper that served as the official organ for the first two years was to collect all fees for the printing of the advertisements in question and pay to the other on the 10th of each month one half of the sum collected, and the other newspaper was to collect all fees for the printing of such advertisements during the last two years and pay to the other on the 10th of each month one half of the sum thus collected. On
The learned trial judge, in his judgment sustaining the .demurrer, places his decision on the ground that for the alleged breach of the contract the petitioner had two remedies when the breach occurred, and will have a third remedy at the end of the fourth year on showing a breach still existing at that time; that the allegations of the petition show that rescission of the contract was not the remedy; that the contract was the product of five parties, three of whom were not joined in this case, and that these officials were necessary parties, having a very, substantial right under the contract, which was sought to be rescinded without their consent; that the rescission applied to a part of the contract, and
This court is strongly impressed1 with the views of the trial judge, but does not concur in the conclusion that the allegation made by the petition, which the demurrer admits to be true, did not show a ease for rescission. True, the general rule is that one of the parties to a contract can no more rescind the contract without the express or implied consent of the other parties than he could make it without the assent of such parties, and that rescission generally contemplates the mutual assent of all the parties to the rescission of the contract. But to this general rule there is an exception well recognized by the authorities, and this arises where one of the parties breaks his contract; and in such case the breach by one party may be treated by the other as an abandonment of the contract, authorizing the innocent party, if he chooses to do so, to dis-affirm it. Thus by legal fiction the assent of both parties is sufficiently manifested. Such a case arises where money is paid on a contract which is executory on the part of him who receives, the money and where the party who receives it altogether fails to fulfill his part of the contract; and the injured party has an election either to bring an action on the contract to recover damages for the nonperformance, or to consider the contract as rescinded and recover back the money paid. 6 R. C. L. 925, § 320. It is true, as stated by the trial judge, the plaintiff did have an election. He could sue the other newspaper corporation for the monthly breach of the contract, or wait until the expiration of the entire contract and sue for damages covering the entire peroid. But he had also the remedy of rescinding the contract and recovering back the money he had paid on it, because the defendant, the second newspaper corporation, had abandoned and repudiated that part
True, the party who wishes to rescind a contract because of the other’s default must show that he has done all that he is required to do in order to entitle himself to the performance of it by the other party, and it is contended in this case, by the learned counsel for the defendant, that the allegations of the petition do not sufficiently show this. The substantial part of this contract as between the two newspapers — indeed, the root of the contract as between them — was the division of the fund collected from the county officials for the legal advertisements. This was the only mutual duty arising between the two. The plaintiff alleged that it had fully performed this part of the duty of collecting for the first two years and paying over to the defendant, the second newspaper, its full proportion of such collections. The contention of counsel for the defendant, that the plaintiff had not fully performed its part under the contract, in not giving monthly notices of collection as required by the contract, is in the nature of a speaking demurrer, for the allegation of the petition that it had paid all that the defendant was entitled to receive raises the fair inference that it had fully performed such minor conditions of the contract as to making the collections and giving the notices. The material part of the contract was the payment of that part of the fees to which the defendant was entitled. Under the facts as alleged, the clause of the' contract relating to the division of the fees, which is really the only part as to which rescission is sought, can be rescinded without affecting the rights of the county under the contract. Indeed the allegation is that the defendant is fully performing its part with the county and making the publications during the period of the service to be performed by the second newspaper corporation m the publication of the advertisements of the county. The complaint is that for this work the plaintiff is not getting from the defendant-that part of the fund which the defendant has collected and which it had agreed to divide equally with the plaintiff.
"While 'the "plaintiff had an election of remedies, we think that in thé present case the remedy by rescission and the repayment to it of the money paid to the defendant for the first two years of the existence of the contract is more complete and adequate, because" it in effect fully restores the status quo between the two newspapers.
Judgment reversed.
