Davis v. Bronson

16 L.R.A. 655, 50 N.W. 836, 2 N.D. 300, 1891 N.D. LEXIS 54

Opinions

Tbe opinion of tbe court was delivered by

Corliss, C. J.

Tbe theory on which plaintiffs were allowed to recover against tbe appellant was that they bad fully performed on their part all tbe conditions of an agreement with appellant and others to erect and equip a creamery at La Moure, in this state. "We are compelled to reverse tbe judgment, because it appears that tbe plaintiffs were not justified in proceeding with tbe work under the contract for tbe purpose of charging tbe appellant with tbe full amount, which be and bis co-partner agreed to pay as their share of tbe contract price, as it is undisputed that tbe appellant broke tbe contract tbe day after it was made, and plaintiffs received notice of bis determination not to carry out tbe agreement on bis part on tbe second day after tbe contract was entered into. This was before they bad taken any steps under it. Appellant could not, under tbe facts of this ease, rescind tbe agreement without the assent of all parties thereto. Nor is it claimed that be did rescind it. Tbe utmost that can be urged is that be arbitrarily refused to perform bis part of tbe contract. This would subject him to an action for damages for breach of tbe contract. But the plaintiffs could not, in the face of this refusal on' 'his part to perform, undertake and carry to completion the work under the contract to be pei’formed by them, and thereupon insist that they were entitled to recover from the appellant his share of the contract price. The authorities are very cledr on this point. Bishop Cont. §§ 837-841; Danforth v. Walker, 37 Vt. 239, 40 Vt. 257; Moline Co. v. Beed, 52 Iowa 307, 3 N. W. Rep. 96; City of Nebraska v. Coke Co., 9 Neb. 339, 2 N. W. Rep. 870; Clark v. Marsiglia, 1 Denio 317; Butler v, Butler, 77 N. Y. 472. No damages for breach of the contract by the appellant were proved, nor was there any allegation of such damages. The action was upon the contract to recover the contract price, and not for damages for breach of it. For this vital error the judgment is reversed, and- a new trial ordered.

All concur.