Green v. Robert Wells & Co.

2 Cal. 584

• Court: California Supreme Court
• Decided: October 15, 1852
• Status: Published

Opinion

Heydemeldt, Justice,

delivered the opinion of the Court; with which Murray, Chief Justice, concurred.

It is a ru'.e of law, that a parol agreement to rescind a contract under seal is good, if such parol agreement is executed; and further fiat such an agreement may be presumed from the acts of the parties.

In this recoid, it is clear, that at the time the agreement to rescind was made, it was merely executory; and one question to be determined is, whether a subsequent execution of it may not be presumed iron the acts of the parties before this suit was brought.

These acts are Very simple. The contract was to build a house. The plaintiffs abardoned the contract, and made no efforts to continue the erection of the house. The defendants some time after the abandonment ly the plaintiffs, sold the lot and the remains of the building, anil thus put it out of their power to require the performance of the contract on the part of the plaintiffs. It seems to me, that i" an execution of the agreement to rescind cannot be presumed from these circumstances, it would be hard to put a case in which it could.

Besides, suppose there was no agreement to rescind, the defence would be complete in another view. The contract was entire ; the covenants were dependent: the plaintiffs break their covenant openly,—first, by a declaration of their inability to keep it, and following that declaration, by an actual abandonment. This is a complete answer to the action.

Let the judgment be reversed with costs.