Miller v. Steen

34 Cal. 138 | Cal. | 1867

By the Court, Sawyer, J.:

This case has been here before (30 Cal. 402.) On the last trial the Court must have found, (although it is not expressed in terms) that the defendant, Steen, rescinded the contract, in pursuance of one of the stipulations, which, we intimated, might possibly authorize him to rescind. A judgment for the recovery of the amount paid would be correct on the hypothesis that the contract was rescinded, but on no other. The appellant insists that the evidence does not justify a finding that defendant, Steen, rescinded the contract. And in this we think he is right. There is nothing in the testimony of a conflicting character, so far as it bears on this point. The whole evidence as to the conduct of the parties indicates that Steen, on the default, either claimed a forfeiture of the payments made on the default, and the property besides, or a right to sell the property in his own way, and pay himself the balance due out of the proceeds. There is nothing to indicate an intention on the part of the vendor to rescind, but every act, under the circumstances, indicates a contrary purpose. He may have mistaken his rights under the contract, but this does not operate as a rescission of the contract on his part, when it is manifest that he did not contemplate anything of the kind. In our former opinion we intimated, that, as the case was then disclosed by the record, no rescission was indicated. We said: “In this ease the vendor does not appear to have rescinded, but to have claimed both the property and the money already paid in pursuance of it. This he cannot do. If the contract has been rescinded the plaintiffs are entitled to recover the money paid. If the contract was not rescinded, the vendees became entitled to possession upon payment of the full amount due.” (407.) We did not know how the facts might be made to appear on the next trial, and we endeavored to indicate the rule applicable to either state of facts. It is clear from the evidence, as it now appears, that the vendor did not rescind. He could only rescind by virtue of the express stipulation on his behalf in the contract, giving it a liberal interpretation in his favor. The vendees could not rescind under the contract without the consent of the vendor. They had the use of the machinery for several months. (Hunt v. Silk, 5 East. 449; Beed v. Blandford, 2 Younge & Jarvis, 383; Franklyn v. Miller, 4 A. & E. 599; 2 Pars, on Con. 677-80.) In this case Steen did not rescind under his contract, and the plaintiff could not. There was, then, no rescission of the contract, and the plaintiffs are not entitled to recover the purchase money paid. The property was lawfully taken into Steen’s possession, in pursuance of the terms of the contract, and his possession only became unlawful after the tender of the balance due, from which time plaintiff became entitled to it. Hpon the facts disclosed by the record, as it is now presented, the plaintiffs are entitled to recover the value of the machinery, less the balance due from them at the time of the tender, and the necessary expenses incurred by defendants in removing and taking care of it.

Judgment and order denying new trial reversed, and new trial ordered.

Mr. Justice Sanderson expressed no opinion.