257 F. 556 | 6th Cir. | 1919
The question remitted to the court below by our per curiam opinion on the former appeal (Miami Co. v. Robinson, 245 Fed. 556, 569, 158 C. C. A. 22), was decided by that court, and is now brought before us by this appeal. A mere statement of our conclusions must suffice. It will be sufficiently intelligible, by reference to the former opinion.
The letter and transfer of September 29, 1914, and the acceptance by Robinson, are now claimed by his assignee to have constituted a cancellation in prsesenti of the contract of July, 1908, operating only against royalty thereafter accruing, and are claimed by the Miami Company to have been a rescission ab initio, or else to have been wholly ineffective because tendered as the latter and accepted as the former, without meeting of minds. For convenience, we denominate the first of these two conflicting theories as “cancellation” and the second as “rescission.” The documents are not necessarily inconsistent with an intent to tender rescission, but the whole record does not justify that interpretation.
The reasons supporting this conclusion are: (a) There is nothing improbable in supposing that the company would be willing to lose what it had invested and take its chances on being compelled to pay royalty until September 29, if it could escape future royalty and get rid of the relations with Robinson, (b) No grounds for rescission existed or had been claimed; and the letter states no claim of cause for rescission, but only alleges breaches which would justify cancellation, (c) The letter demands no repayment of the consideration paid (except remotely under the name of damages for breach), (d) The company’s amended answer did not allege rescission, but only “renouncement,” and did not ask relief appropriate to rescission, (e) Upon the trial, both parties and the court treated the transaction as a cancellation, and neither by assigned error or by brief or argument in this court did the company complain; on the contrary, it acquiesced in the theory that, if it was liable at all, its liability ceased on September 29. (f) Even in the company’s application for rehearing in this court, upon the former appeal, the theory of cancellation seems to be depended upon, and the theory of rescission is, at best, only suggested. Not until the court below, after remand, was asked to enter final decree, was the defense of rescission ever distinctly and clearly made.
From these considerations, all of which appear without dispute, it is evident that the decree below was right in its substantial result; and it is affirmed.