38 A.2d 626 | D.C. | 1944
In the action below the trial judge filed a full and informative memorandum opinion in which he not only narrated the evidence but carefully marshaled the numerous contentions of the parties and reduced the issues to their simplest terms. By stipulation of counsel that memorandum was made a part of the statement of proceedings and evidence, and it has assisted us in the consideration of this appeal.
The record reveals that appellant, who was defendant below, by contract with plaintiff wrecking company authorized that company to demolish certain lumber sheds and retain as its property the salvaged lumber. Plaintiff paid the agreed consideration and entered upon the performance of the contract. After it had removed part of the lumber it was notified that defendant had no right to sell the material because in a lease with an oil company defendant had already transferred to that company the right to the salvaged material. When defendant confirmed that fact plaintiff made demand upon him for the value of the remaining material. Payment being refused, plaintiff brought suit. The trial judge found for plaintiff and also denied recovery on a counterclaim which defendant had filed.
The trial judge rejected defendant’s contention that because of mutual mistake of fact the contract was subject to rescission. We think the ruling was correct. Mistake there may have been; but if so, it was entirely the mistake of the defendant. He it was who undertook to sell the material and under the Uniform Sales Act (now a part of our Code) he thereby impliedly warranted that he had a right to sell, free of any claim, charge or encumbrance of any third party not declared or known to the buyer before or at the time of the contract of sale. Code 1940, § 28 — 1113. The uncontradicted evidence was that defendant knew, and plaintiff did not know, of the superior right of the oil company to the material in question. It is also clear that defendant had made an unqualified undertaking to deliver the merchandise; and having failed through no fault of the plaintiff, he must pay damages for his failure.
The next principal defense was impossibility of performance. • This defense, as Williston points out, is analogous to that of mistake
Finally we are told that plaintiff was not entitled to recover because the damages he claimed were speculative. But
There are other errors assigned. Some are general in their nature; others have no support in the record; and still others are covered by what we have already said.
Affirmed.
Berg v. Erickson, 8 Cir., 234 F. 817, L.R.A.1917A, 648; Rishel v. Pacific Mut. Life Ins. Co. of California, 10 Cir., 78 E.2d 881, 131 A.L.R. 414; Salinger v. General Exchange Ins. Corporation, 217 Iowa 560, 250 N.W. 13; Rowe v. Inhabitants of Peabody, 207 Mass. 226, 93 N.E. 604; Embry v. Lewis, Tex.Civ. App., 19 S.W.2d 87. See also Restatement, Contracts, Sec. 503.
Williston on Contracts, Rev.Ed., Yol. 6, Sec. 1937.
Williston on Contracts, Rev.Ed., Vol. 6, Sec. 1959 and many cases cited in footnotes 6 and 7 at page 5496. See also Restatement, Contracts, Secs. 455, 459. See also Berg v. Erickson, supra, and Jennings v. Lyons, 39 Wis. 553, 20 Am.Rep. 57.
Allen v. Hammond, 11 Pet. 63, 9 L.Ed. 633.