46 Wis. 511 | Wis. | 1879
The defendant, in his answer, sets up substantially, that by reason of the failure of the plaintiff to make the monthly payments stipulated in the contract, and the nonperformance of the contract by the plaintiff in this respect, he was unable to continue the work; and that accordingly he rescinded the contract and abandoned work under it, and thereafter the work that was done was so done without and regardless of the contract.
The jury found, as a question of fact, that the plaintiff did so fail to pay and perform, and that the defendant was thereby hindered and delayed in his work, and suffered damages in the sum of $519, which was deducted, in the rendition of the judgment, from the damages allowed the plaintiff.
"Whether the contract was in fact so rescinded, and the work abandoned, on account of such nonperformance by the plaintiff, as claimed by the defendant in his answer, were very material questions in the case, to be passed upon by the jury before they could properly answer the sixth interrogatory, as to whether the further prosecution of the work was within and under the contract or outside and irrespective of it. On this question of rescission and abandonment, the jury were instructed as follows: “ You will ascertain from the evidence
The jury must have so understood the instructions, and made their fourth special finding accordingly.
These instructions were most clearly erroneous, and evidently misled the jury to the prejudice of the defendant.
It may be abstractly true, as a general rule, that, as a contract can be made only by the consent of all the contracting parties, it can be rescinded only by the consent of all; and yet such consent need not be expressed by an agreement to rescind in any case; and when a party for any sufficient cause rescinds or abandons the contract, the consent of the other party will be implied or presumed, as he might have well anticipated and expected such rescission and abandonment by reason of his own default. A party may rescind the contract
In the light of these authorities, and all others upon the question of both the right and the fact of the rescission of contracts, the instructions, in application to the facts of this case, were not only wrong as given, but failed to give the law applicable to such a case.
By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.