Christiancy, J.
Admitting for the present that Ihe circuit judge was right in his findings, both of fact and law, upon every other point; that the title did not pass to plaintiff until the logs were delivered afloat in the stream, and that they would have had the right to rescind had they done so with sufficient promptness, the main, the previous question, upon which the whole case must turn, is whether they had the right to rescind at the late day, and under the circumstances, when they attempted to exercise that right.
If the finding of the judge was correct, that “the testimony shows that said five-hundred-dollar payments ” [of September 2d and November 12th, 1872] “were made by the plaintiffs to the defendants upon the assurance by the defendant, through Rogers, that the logs were all afloat, or nearly so; that the plaintiffs knew nothing to the contrary,, and relied upon these assurances,” then the delay in exercising the right to rescind, or their tardiness in attempting it, may be sufficiently explained and excused. And we are bound to hold this finding of fact correct and conclusive, if there was any evidence in the case tending to sustain it as a whole. But as the evidence is all given in the record, if there be none to sustain this finding, or if any particular and material part of this finding be without evidence to-sustain it, then the finding thus far is not binding, and must be held erroneous.
[165] There was evidence tending to- show that the two fiveImndred-dollar payments alluded to were made by the plaintiffs to the defendant upon the assurance by the defendant that the logs were all afloat, or nearly so; and that the plaintiffs, at the time of those payments (September 2d and November 12th, 1872), knew nothing to the contrary. But the letter of plaintiffs (written by Bates), to which the judge alludes, was written June 10, 1873, about seven months after those payments. And I have searched the record in vain for any evidence tending to prove that when this letter was written by the plaintiffs they relied upon any representations of the defendant, that “ the logs were all afloat, or nearly so,” or that the plaintiffs, after such representations were made, had not, long prior to the writing of this letter, learned the fact that they were not all afloat, or nearly so. It may be true, and there is some evidence to show, that Bates personally (the. member of the firm who wrote the letter) had not, up to the time it was written, learned the fact that the logs were not all, or nearly all, afloat, and that the representations when made were not true. But upon the question of acquiescence, and undue delay in exercising the right to rescind, the firm must be conclusively held to have known every fact material to the question, which any member of the firm knew; and to have had notice of every thing of which any one of them had notice; and any act of any member of the firm, or any letter written by one of them in their name, with reference to any of this business with the defendant, must be treated as the act or letter of the firm.
Now, Gould, one of the members of the firm, on his direct examination, testified as follows: “ The fifth day of July, 1872, I paid them five hundred dollars on our note; I asked Rogers if those logs were afloat, and he said they were, or the biggest part of them, as he understood; I think it was along in August, 1872; I will not be positive; I was at Hubbardston running logs down the creek, and I asked him again about it, and he said he understood they [166] were pretty much all broke in. I paid him five hundred dollars on the note on the fifth of July, and paid him five hundred dollars on a note, and renewed the balance at sixty days. I have not got the date of it. It was endorsed on the note. It was after the fifth of July. We paid in July and subsequent to that, the installments of five hundred dollars each” [referring, as all the testimony shows, to the payments of September 2d and November 12th, 1872], “because we supposed it was due them. I asked Rogers at the time if the logs were afloat, and he said they were, or nearly all; and it was upon the assurance that they had put the logs afloat, that we paid that money. I did not see those logs in the year 1872, after the first time I went to see them in February; I knew they were not put afloat during that year, because I saw them there on the roll-way on the 9th of July, 3873, all except thirty or forty logs.”
Now, thus far it is clear enough that his testimony tends very directly to show that all the money that was paid was paid upon the assurance of the defendant that the logs were all, or nearly all, afloat; and had the testimony been left to stand thus, it would also have tended to show that the letter of the 10th of June, written to the defendant in the name of the firm by Bates, was written in reliance upon the same assurances. The witness gives the time of these conversations with Rogers, when these assurances were made, as the several times when the payments were made, and besides these times, once in August, 1872; and specifies them so particularly as to lead to a strong inference that these were all the times when he claims that there were any such conversations or assurances.
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Christiancy, J.
Admitting for the present that Ihe circuit judge was right in his findings, both of fact and law, upon every other point; that the title did not pass to plaintiff until the logs were delivered afloat in the stream, and that they would have had the right to rescind had they done so with sufficient promptness, the main, the previous question, upon which the whole case must turn, is whether they had the right to rescind at the late day, and under the circumstances, when they attempted to exercise that right.
If the finding of the judge was correct, that “the testimony shows that said five-hundred-dollar payments ” [of September 2d and November 12th, 1872] “were made by the plaintiffs to the defendants upon the assurance by the defendant, through Rogers, that the logs were all afloat, or nearly so; that the plaintiffs knew nothing to the contrary,, and relied upon these assurances,” then the delay in exercising the right to rescind, or their tardiness in attempting it, may be sufficiently explained and excused. And we are bound to hold this finding of fact correct and conclusive, if there was any evidence in the case tending to sustain it as a whole. But as the evidence is all given in the record, if there be none to sustain this finding, or if any particular and material part of this finding be without evidence to-sustain it, then the finding thus far is not binding, and must be held erroneous.
[165] There was evidence tending to- show that the two fiveImndred-dollar payments alluded to were made by the plaintiffs to the defendant upon the assurance by the defendant that the logs were all afloat, or nearly so; and that the plaintiffs, at the time of those payments (September 2d and November 12th, 1872), knew nothing to the contrary. But the letter of plaintiffs (written by Bates), to which the judge alludes, was written June 10, 1873, about seven months after those payments. And I have searched the record in vain for any evidence tending to prove that when this letter was written by the plaintiffs they relied upon any representations of the defendant, that “ the logs were all afloat, or nearly so,” or that the plaintiffs, after such representations were made, had not, long prior to the writing of this letter, learned the fact that they were not all afloat, or nearly so. It may be true, and there is some evidence to show, that Bates personally (the. member of the firm who wrote the letter) had not, up to the time it was written, learned the fact that the logs were not all, or nearly all, afloat, and that the representations when made were not true. But upon the question of acquiescence, and undue delay in exercising the right to rescind, the firm must be conclusively held to have known every fact material to the question, which any member of the firm knew; and to have had notice of every thing of which any one of them had notice; and any act of any member of the firm, or any letter written by one of them in their name, with reference to any of this business with the defendant, must be treated as the act or letter of the firm.
Now, Gould, one of the members of the firm, on his direct examination, testified as follows: “ The fifth day of July, 1872, I paid them five hundred dollars on our note; I asked Rogers if those logs were afloat, and he said they were, or the biggest part of them, as he understood; I think it was along in August, 1872; I will not be positive; I was at Hubbardston running logs down the creek, and I asked him again about it, and he said he understood they [166] were pretty much all broke in. I paid him five hundred dollars on the note on the fifth of July, and paid him five hundred dollars on a note, and renewed the balance at sixty days. I have not got the date of it. It was endorsed on the note. It was after the fifth of July. We paid in July and subsequent to that, the installments of five hundred dollars each” [referring, as all the testimony shows, to the payments of September 2d and November 12th, 1872], “because we supposed it was due them. I asked Rogers at the time if the logs were afloat, and he said they were, or nearly all; and it was upon the assurance that they had put the logs afloat, that we paid that money. I did not see those logs in the year 1872, after the first time I went to see them in February; I knew they were not put afloat during that year, because I saw them there on the roll-way on the 9th of July, 3873, all except thirty or forty logs.”
Now, thus far it is clear enough that his testimony tends very directly to show that all the money that was paid was paid upon the assurance of the defendant that the logs were all, or nearly all, afloat; and had the testimony been left to stand thus, it would also have tended to show that the letter of the 10th of June, written to the defendant in the name of the firm by Bates, was written in reliance upon the same assurances. The witness gives the time of these conversations with Rogers, when these assurances were made, as the several times when the payments were made, and besides these times, once in August, 1872; and specifies them so particularly as to lead to a strong inference that these were all the times when he claims that there were any such conversations or assurances.
Upon his cross-examination, being shown the letter of his firm to defendant, dated June 30, 1873, he says: “I guess likely Mr. Bates wrote that letter, — one of our firm. I first ascertained those logs were not put afloat, last winter; I think it was along in February last.” The trial being in November, 1873, it was clearly therefore in February, 1873, that he ascertained that the logs were not put [167] afloat. In other words, it was in February, 1878, some three months after the last money had been paid, and some four months before the letter of June 10th was written, and nearly five months before any attempt was made to rescind, that the firm ascertained that the logs had not yet been put afloat; and after learning this fact, it is, of course, idle to talk of any subsequent act of theirs being done or omitted, in reliance upon any of .those representations of the defendant, to which Gould had testified, the last of which was November 12, 1872, all of which they had now learned were untrue, and that the logs had not been afloat as represented. If, therefore, the witness Gould ever saw Rogers after the time to which he had testified on his direct examination, and again received, at such subsequent - time, any new and further assurances of the logs being all afloat or nearly so, it was clearly for his interest, and that of his firm, now to state that such subsequent assurances were made, and the time when, and by whom made. The witness evidently saw the importance of.this, as will presently appear, in view of the letter of June .10th, which he had just admitted. But though he again refers to those assurances in a general way, he does not state that he hád ever, after the 12th November, when the last money was paid, seen Rogers or had any conversation with him; or that he, or any officer of the company, had given any new or further assurances of the kind in question; but simply says, generally, immediately following the portion of his testimony above quoted, “ after we learned they were not afloat, in February last, we did not make any payment; we made no offer of payment to defendants. I asked him (Rogers) if those logs were afloat yet, and he said, he understood they were pretty much all afloat.” He does not here state when he asked Rogers, nor when Rogers told him this; he found no difficulty in stating the time in his direct examination, and the occasion, and the fact of meeting Rogers at those times. And the only fair interpretation, as it seems to me, of the language just quoted, is, that it [168] refers to the assurances and the times spoken of in his direct examination, where the times and particular occasions had been mentioned; and therefore it was unnecessary to repeat them here. Such, it seems to me, is the only fair interpretation to be given to his testimony as a whole. This interpretation is also in full accord with the letter of June 10th, and what must have been Gould’s understanding of his own testimony, in connection, or with reference to, the letter; for he says, “ after we learned they were not afloat, we made no offer of payment to defendant.”
Finally, the counsel for the plaintiffs below, defendants in error, does not, by his brief, claim any different construction of- the language in question, from that which I have adopted.
There certainly is no other evidence in the case showing, or tending to show, any assurances after the 12th of November, 1872, made by defendant, that the logs were afloat. Nor is there any thing tending to show that the plaintiffs, between February, 1873, when they learned the logs were not afloat, and the first of July, when they attempted to repudiate, had any reason to believe that the logs were afloat, or had ever been informed that they were.
Here, then, — independent of the letter of plaintiffs of the 10th June, or any effect to be given to that letter, — is a delay of between four and five months, after the plaintiffs had learned that the logs were not afloat, and that the assurances given to the contrary were not true, before ant attempt is made to rescind. This acquiescence and delay is in no manner excused or explained. If the plaintiffs could have rescinded at all, they could only do so within a reasonable time; and we are bound, I think, in the absence of any evidence excusing it, to notice that this long period of delay was more than could reasonably be required for that purpose. The law is so well settled upon this point, that it would be a waste of time and space to cite authorities.
But the letter of the plaintiffs, of June 1G, 1873, written [169] when the firm had full knowledge that the logs were not yet afloat in February, 1873, shows clearly that at that time the plaintiffs had no intention of rescinding the contract, but led the defendant to believe that they intended to carry it out, and to pay as soon as they could raise the money, and there is no fact shown as occurring after that time, or any new information obtained by them, giving any better grounds for rescinding than they then had.
Finally, it may well be doubted whether the letter or notice given by the plaintiffs to defendant, by which they undertook to rescind, is not, of itself, as much of a confirmation as a rescission of the contract. They could not, in any event, rescind in part, and hold it valid or insist upon it in part, or valid for one purpose and void for another. They must rescind entirely,'or not at all. But here, after declaring their intention to rescind, they say further, “we shall look to you for our damages sustained by your failure to perform the contract according to its terms.”
The court very properly held (and such is obviously the law) that “plaintiffs cannot rescind the contract and then, insist on damages for not performing; for when a contract is rescinded an action will not lie for the breach of it.”
It is very clear, I think, that upon the pleadings and evidence in this case, no action for the purchase price paid can be maintained upon any other basis than that of a rescission.
There being no such rescission established in the present case, the judgment must be reversed, with costs, and a new-trial awarded.
As we are not authorized upon the case before us to assume that evidence can be adduced on a new trial which will establish the right to rescind, and without this the other questions in the case would be immaterial, we do not uotice them here.
Graves, Ch. J., and Cooley, J., concurred.