Norrington v. Wright

5 F. 768 | U.S. Cir. Ct. | 1881

Lead Opinion

Butler, D. J.,

(orally.) To justify an allowance of the motion, we must be convinced that our ruling at the trial was wrong. We are not so convinced. The motion must therefore, be dismissed. For myself, however, I may say that I regard the point as involved in serious doubt,—not so much when considered on general principles, as when viewed in the light of modem decisions. The right to rescind a contract for non-performance, is a remedy as old as the law of contract itself. Where the contract is entire,—indivisible,—the right is unquestioned. The undertakings on the one side, and oil the other, are dependent, and performance by one party cannot be enforced by the other, without performance, or a tender of performance, on his own part. In the case before us the contract is “severable.” But to say it is “severable,” does not advance the plaintiffs’ argument. A “severable” contract, as the language imports, is a contract liable simply to bo severed. In its origin, and till severed, it is entire—a single bargain, or transaction. The doctrine of severableness, (if I may be allowed to coin a word,) in contracts, is an invention of the courts, in the interest of justice, designed to enable one who has partially performed, and is entitled on such partial performance, to something from the other side, to sustain an action, in advance of complete performance,— as where goods are sold to be delivered and paid for in parcels, to enable the seller to recover for the parcels delivered, in advance of completing his undertaking. But this equitable doctrine should not be invoked by one who has failed to perform, for the purpose of defeating the other’s right to rescind, and thus to protect himself against the consequences of his own wrong. As against such a party the contract should be treated, and enforced, as entire. To say therefore that the contract is “.severable,” does not, I repeat, advance the argument. To render the plaintiff’s position logical, it is necessary to take a step forward, and hold that such a transaction, (it would not be accurate in this view to-call it a contract,) constitutes several distinct, independent contracts. Then of course it follows that a failure as respects one of several successive deliveries, affords no right to rescind in regard to those yet to be made. And this step, after much apparent doubt and hesitation, the English courts have taken. It was the necessary outgrowth of the decision in Simpson v. Crippen, which overruled Hoare v. Rennie. In our own country the cases are inharmonious, and the question unsettled. After a careful examination of what has been said on the subject, I shall not be surprised if the courts here finally adopt the present English rule, and thus substitute compensation in damages for the remedy by rescission, to the extent there done. I say this, however, not because I think it wise to adopt this rule, but because of an apparent leaning in that direction. The question, however, as here presented, is properly for the supreme court, to which I hope it may be carried, and the rule thus be settled.

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Concurrence Opinion

McKennan, C. J.,

(orally.) I concur in the foregoing decision. I am not satisfied that the weight of authority in this country is preponderating in favor of following the English rule. I have very great doubt as' to the justice of this rule and am not disposed to follow it. I am not willing to take this advanced step.