191 P. 1054 | Or. | 1920
We have carefully read the voluminous record in this case, and agree with the trial court that the contract was not modified, that it was breached by the defendants, and that their failure to perform was not due to any of the exceptions specified in the contract.
“The modern doctrine is that a contract should be .construed according to the meaning and intention of the parties.”
Quoting with approval from Clark on Contracts, 656, the opinion goes on to say:
“It is sufficient to say that, ‘in the absence of very clear indications to the contrary, promises, each of which forms the whole consideration for the other, will not be held to be .independent of one another, and a failure of one party to perform on his part will excuse the other from liability to perform.’ ”
The lien here in question is founded upon the contract, and does not exist as a matter of right. Since they breached the contract, the defendants cannot assert and enforce a lien under its terms and provisions.
The rule is thus laid' down in Longfellow v. Huffman, 49 Or. 486, 491 (90 Pac. 907, 909):
“ ‘It is well settled,’ says the Supreme Court of Illinois, ‘that, where one party repudiates the contract and refuses longer to be bound by it, the injured party has an election to pursue either of three remedies: He may treat the contract as rescinded, and recover upon quantum meruit so far as he has performed; or he may keep the contract alive for the benefit of both parties, being at all times himself ready and able to perform, and at the end of the time specified in the contract for performance sue and recover, under the contract; or he may treat the repudiation as putting an end to the contract for all purposes of performance, and sue for the profits he would have realized if he had not been prevented from performing. In the latter ease the contract would be continued in force for that purpose. Where, however, the injured party elects to keep the contract in force for the purpose of recovering future profits, treating the contract as repudiated by the other party, in order to such recovery, the plaintiff must allege and prove performance upon his part, or a legal excuse for nonperformance’: Lake Shore & M. S. Ry. Co. v. Richards, 152 Ill. 80 (38 N. E. 777, 30 L. R. A. 33).”
In the instant case the plaintiffs have elected to treat the breach by the defendants as an end to the contract, and have brought their action for profits which should have accrued at the time of the breach. The testimony is conclusive, and supports the finding
The judgment is affirmed.