55 Minn. 457 | Minn. | 1893
It seems to us that there are more grounds than one> on which the order appealed from might be affirmed, but we shall consider the case upon the lines upon which counsel have argued, it.
Accepting as true the testimony of defendant Cannon, the facts: were as follows: Plaintiff was the owner of a stock of hardware, and' also of a stock of lumber. Cannon was negotiating for the purchase
Moody attempted to testify that he paid his part of the cash on the hardware and lumber together, but nothing of the kind was corn--municated to plaintiff, and the evidence is perfectly conclusive that both the cash and the notes were paid or given and accepted for the price of the hardware exclusively, in exact accordance with the' terms of the contract, Exhibit A. Defendants took, and still retain, possession of the hardware. On the occasion when the deal as to the hardware was closed up the defendants requested plaintiff to enter into a writing for the lumber business, and to proceed to have an inventory of the stock taken; but he refused to do either at that time, and has subsequently refused to do so at all, or to deliver the lumber to defendants, although they offered to pay him its market value. When sued on one of the notes given for the hardware, the defendants set up plaintiff’s nonperformance of the contract as respects the lumber, for the purpose, as it would seem from> their answer and from the evidence introduced on the trial, of counterclaiming or recouping their damages against the note,but, as now claimed in this court, as a complete defense to the action.-
The doctrine which defendants invoke is that to entitle a party to’ recover on a contract he himself must have fully performed on his-part, and that when he has refused to fully perform his contract according to its terms he cannot recover for part performance. But-from the leading case of Cutter v. Powell, 6 Term R. 320, down, thi£ rule has been held applicable only to contracts which are entires
Without attempting to enter iúto any general investigation of the question, so often discussed, as to when a contract is entire and" when it is severable, and without committing ourselves to the length to which courts have sometimes gone • in holding certain executory,contracts severable, so as to defeat the right of one party to rescind upon some default of the other party, it is sufficient for us to say that, even conceding that upon the facts of this case there was a valid contract for the sale of the lumber as well as the hard- - ware, yet, according to all the authorities, it was not entire, but severable; or, to speak accurately, there were two separate contracts, although made at one and the same time. Whether a contract is entire or severable, like most questions of construction, de-’ pends on the intention of the parties, and must be determined in each' case by considering the language employed and the subject-matter of the contract, and how the parties themselves treated it.
One of the best statements of the law on the subject, and one often cited by the courts with approval, is that in 2 Parsons, Cont. 648, which is: “If the part to be performed by one party consists of several distinct items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by law, such contract will generally be held to be severable.”
As complete and legally accurate a statement of the rule as anywhere to be found is that of Mr. Justice Field in Norris v. Harris, 15 Cal. 226, viz.: “A contract made at the same time, for different articles, at different prices, is not an entire contract, unless the taking of the whole is essential from the character of the property, or is made so by the agreement of the parties, or unless it is of Such a nature that a failure to obtain a part of the articles would materially affect the object of the contract, and thus have influenced the sale had such a failure been anticipated.” Without again repeating the facts of this case, it is enough to say that, in view of the subject-matter, the language of the parties, and the conduct of the parties with reference to the subject, the contract as to the hardware
Assuming that there was a valid contract for the sale of the lumber business, of course defendants .were entitled to recover damages for its nonperformance. There is neither allegation nor proof that there was any good will connected with the business, so that the contract was, in effect, merely one for the sale of so much lumber; and the mehsure of damages would be merely the difference between the contract price and the market value of lumber at the time and place when and where the defendants were entitled to it, according to the terms of the contract. As to this, there was neither allegation nor proof, and, indeed, there could not well have been, in view of the fact that no contract price was ever agreed on.
Under defendants’ answer, they were not entitled to recover more then nominal damages, and the court ought to have directed a verdict in favor of the plaintiff for the amount of the note. In view of this fact, the errors assigned as having occurred on the trial are wholly immaterial.
Order affirmed.
