Allen v. Webb

24 N.H. 278

• Court: Superior Court of New Hampshire
• Decided: December 15, 1851
• Status: Published

Opinion

Eastman, J.

Although this suit was instituted in the name of the plaintiff, Allen, it appears that the real plaintiff is one Dorcas Hopkinson, and the case presented is this: Dorcas Hopkinson had a suit pending against the town of Guildhall, in Yermont, to recover for the default of a constable. The defendants were the sureties of the constable, and were interested to have the suit terminated. By an agreement between them and the attorney of Dorcas, they gave their notes, one of which is now in suit, to have the action against the town settled. It was also a part of that agreement that Dorcas should assign to the defendants the judgments out of which the suit against the town originated. She, however, refused to make the assignment, and the notes were thereupon tendered to the defendants, with an offer to throw up the whole settlement; but they refused to receive them, and insisted upon the settlement being carried out according to the agreement. They also, at the next term of the court where the action against the town was pending, caused a discharge of the suit to be entered upon the records of the court.

Such being the facts when Dorcas HopMnson refused to assign the judgments according to the agreement, it was in the power of the defendants either to rescind the contract or to insist upon the agreement being carried out. They could pursue either course, but not both. When one party to a contract refuses to perform his part of the same, the other party may avail himself of the refusal and rescind the contract; but it is not competent for him to enforce a performance on refusal made, and then endeavor to use the refusal as a ground to rescind. Luey v. Bundy, 9 N. H. Rep. 298.

The defendants did not see fit to rescind the contract on the refusal of Dorcas to assign the judgments, and upon the notes being tendered to them, but on the contrary, they proceeded to have the contract carried out, and caused the suit against the town to be discharged. They thereby gained an important point. The discharge of that suit may well be presumed to have been the principal consideration of the notes; and having taken that course, and obtained that advantage, it is now too late for them to rescind the contract. If they had not caused the suit against the town to be discharged, they could have rescinded the contract upon the refusal to assign the judgments, and this suit could not be maintained; but having insisted upon the performance of the contract, and done what they could without suit to carry it into effect, they must abide by their election. They cannot now set up the refusal to assign the judgments as a defence to the notes, but must rely upon the contract for whatever remedy they have.

This is not a case where a failure of consideration can be received to defeat the recovery of the note. But we need not go into an examination of that question. Upon the facts presented, the ruling of the court was correct, and there must be

Judgment on the verdict.