| W. Va. | Oct 25, 1904
The vital question presented here is, whether a mere renunciation of an executory contract by one of the parties thereto’ which is recanted or retracted within a few minutes afterwards, and before any declaration has been made or act done by the other party, in respect to such renunciation, and before any change in the situation of the parties or the subject matter of the contract has taken place, constitutes a breach, of the agreement.
“This Agreement, made this 26th day of March, 1901, by and between C. E. Mark, of the first part, and Hayman & Coston, of the second part, all of the county of Harrison and State of West Virginia:
“Witnesseth: — that the said party- of the first part has this day bargained and sold nnto the parties of the second part, all his stock of groceries and merchandise, now in the Goff Building in the city of Clarksburg, W. Va., on the following terms and conditions, that is to say, — for cash at invoice, plus twenty-five per cent, additional, and this sale is to include all fixtures and appliances used by the said party of the first part, including horse, delivery wagon and harness.
“The invoice of the stock hereby sold is to be made Thursday, March the 28th, 1901, and on the following days if necessary to complete the same.
“And the parties hereto hereby deliver into the hands of John R. Swiger, their checks for the amount of two hundred dollars each, to be held as liquidated damages to either of the parties, in case either of the parties hereto shall retract the sale.
“(Signed), C. E. Make, (Seal).
“(Signed), Hayman & Coston, (Seal).
“By Newell J. I-Iayman/'’
Upon the signing of this paper, the checks mentioned therein were made and deposited as therein agreed. This occurred on Tuesday, the 26th day of March, 1901, and, on the second day thereafter, Thursday, the parties began listing the stock of goods. In the evening of that day, after the listing had been completed, or about so, the question of valuation came up, and the purchasers called for the invoices. They were produced on the next morning and the work of inserting the values was taken up. Very soon thereafter, some articles which had been purchased in Hew York appeared on the list and Mark said ten cents must be added for drayage and an additional amount for freight. To this, Hayman and Coston objected. Thereupon they resorted to a lawyer for his advice as to the meaning of the terms, “at invoice,” as used in the contract. This did not result in an agreement and Mark left the room. He says that, before leaving, he proposed an arbitration, and that Hayman said, “We won’t do it, we are strangers here and don’t want to get the worst of it. We
The next step was an action before a justice of the peace, brought by Hayman and Coston against Swiger, the stakeholder, on the same day on which Mark’s notice was served upon them. Thereupon Swiger commenced, in the circuit court of Harrison county, a suit in equity, enjoining prosecutions against him, and praying that the contending claimants of the fund in his hands be required to interplead in that suit, concerning the fund in dispute. They did so, with the result that the two checks were delivered over to the clerk, collected, and a decree pronounced directing payment of the entire amount, four hundred dollars, to Hayman and Coston, and from that decree Mark has appealed.
This decree rests upon two theories. Tirst, that there was a repudiation by Mark of the entire contract. Second, that the mere repudiation of it, without any act done or declaration made by Hayman and Coston, or change of condition, released them. As to the first of these two propositions, it is unnecessary to say anything. The unsoundness of the second reverses the decree. The renunciation of the contract by Mark, if there was one, was retracted immediately and before the other parties had announced any purpose or intention in respect to it, and before they were in any way prejudiced by it. The Supreme Court of the
In Shaw v. Republic Life Ins. Co., 69 N.Y. 286" court="NY" date_filed="1877-04-10" href="https://app.midpage.ai/document/shaw-v--republic-life-ins-co-3607678?utm_source=webapp" opinion_id="3607678">69 N. Y. 286, the court announces the law as follows: “When one of the parties to an executory contract announces to the other that he will not perform, and does not before the time fixed for the performance of a condition precedent, by the other withdraw his declaration, such other party is excused from.performance, or an offer to perform upon his part, and may, when the day has passed for performance by the one who has so declared his purpose, maintain an action for a breach of the contract.” A case in point is Traver v. Halstead, 23 Wend. 66" court="N.Y. Sup. Ct." date_filed="1840-01-15" href="https://app.midpage.ai/document/traver-v-halsted-5515441?utm_source=webapp" opinion_id="5515441">23 Wend. 66, concerning an executory contract for the sale of a farm by Halstead to Traver. Before the expiration of the time for closing the contract, Traver gave Hal-stead notice that he would not take and pay for the land, but af-terwards, on the day appointed for payment, he tendered payment, whereupon Halstead refused to convey, and the court held that there was no breach of the contract on the part of Traver. Cowen, Judge, in delivering the opinion of the court, said: “But the refusal on the 4th was not conclusive on the plaintiff. He had a right to change his mind, as he avers that he did, which is not denied by the plea, and still present himself and offer to perform on the fifth. This was equivalent to a revocation of what he had before said, which could not operate as more than a mere license or excuse to the defendant for not being ready. The refusal did not discharge the covenant; but we would not allow the plaintiff thus to play a trick on the defendant. He does not, however, say he had been thrown off his guard, and that he merely wanted time therefore. He admits, by not denying, what the plaintiff avers in his declaration that when he did come, and tender a performance, the defendant met him with a general re
To the possible suggestion that here the recantation did not come before the time for performance, appointed by the contract, the reply- is that, unlike a contract for the payment of money, this one cannot bo instantaneously performed. To take an invoice, including the ascertainment of values, requires time, and this must have been in the contemplation of the parties. The contract is silent as to the day or hour of the completion of its execution. Nothing more than a slight interruption and delay occurred by reason of the act of Mark, complained of and relied upon as a breach. The other parties took no step whatever in consequence of his renunciation. Their situation was not changed or altered in the least, and they did not signify by word or act what their wishes or purposes were, what interpretation they put upon the language and conduct of Mark, nor what they intended to do, until after he had retracted, and then it was too- late.
Under the foregoing principles, the decree in favor of Hayman and Coston must be reversed and, as upon the whole case, it appears that they have failed to comply with their contract, Mark is entitled to his damages, according to the stipulation of the agreement, and also to the money deposited by him to answer for any default on his part. Therefore, it being the duty of this
Reversed.