, 1892-01-13
A BRICK CONTRACT.
THE DECISION or THE KING
COUNTY COURT REVERSED.


"A Case Which is interesting TO Con
tractors and Business NE
Throughout the State RelattY
to Rre ach of Contract.
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print from time to time all the decisions {
the supreme court.
No. 3O3.-James Dignan, respondent VI
James Spur, appellant.
The respondent brought this actiol
against appellant to recover damages fo
an alleged breach of contract in writing
which is as follows:
s'This agreement made and entered into
this 10Th day of November, A. d., 1889, b,
and between James Dignan, of the city O
Seattle, King county, state of Washington
party OF the first part, and James Spur
of the same place, the party Of the secont
part.
Witnesseth, That for and in considera
zion of the covenants and agreements oil
the part Of said party of the second par
hereinafter set forth and contained, th,
said party Of the first part agrees to manu-
facture at his brick yard in West Seattle
in said King county, five hundred thous
and (500,000) good merchantable brick
the same to be sold and delivered to the
said partd Of the second part, at the plac,
and for the price hereinafter mentioned.
Said first party is to commence deliver
Ing bricks from the second kiln which b,
shall burn at his said brick yard, and shal
continue to deliver all the brick he shal
manufacture from said time until the full
amount is delivered.
Said brick are to be delivered on a scoN
on such gridirons on the different slips il
the city of Seattle water front as shall be
most convenient for said second party.
In consideration of the above the sale
party of the second part agrees to buy, pur
chase and to take from said first party al
of said five hundred thousand (5C5, 900
brick upon said terms and conditions above
named, and agrees to pay to said party Of
the first part thirteen dollars ($13.O0) pei
thousand for all bricks to the amount afore
said delivered on the gridirons aforesaid
the said money to be paid when the sale
second party has promptly taken the brick
from the said gridlrons, and has delivered
them at the buildings in the city of Seattle
where the same are to be used, it being
hereby understood and agreed that the
said second party is to take them promptly
from the said gridirons and is to deliver
them promptly at the said buildings afore.
mentioned In witness whereof etc. etc.
The plaintiff alleges in his complaint
that he kept and performed all the terms
and conditions Of the contract on his part
and that between the 18th day Of Jan.
uary, and the 9TH day Of May, 1890, he
manufactured five hundred thousand
good merchantable brick and, as fast as
they were manufactured, delivered them
on gridirons on the water front of the said
city of Seattle, at the place designated by
defendant as most convenient for him
that the defendant accepted and received
267 1902 bricks of the quantity SO delivered
to him by plaintiff, but wholly failed and
refused to accept or receive the remainder
thereof, and that by reason of such failure
and refusal to accept and receive the same,
the defendant was compelled to and did
sell the same in such quantities as he could
and for the best price that the same would
bring, of which the defendant had notice,
and that by reason of the failure and re-
fusal of defendant to perform his said con-
tract, the plaintiff has sustained damage in
the sum of $79582.
The answer of the defendant in sub
stance denies that the plaintiff performed
the conditions of the contract on his part,
admits that the defendant received and ac-
cepted 266, 1872 brick from the plaintiff, al
leges that on or about April A, 1890, plain
tiff and defendant mutually agreed that
said contract should be determined and
Cancelled. and accordingly settled and de-
terminedthe same and mutually agreed that
the settlement then and there had should
be considered as satisfaction in full to
both the plaintiff and defendant of all de-
mands and obligations, and Of all duties
arising under, or flowing from, the said
contract in any manner whatsoever, and
sets forth counter claim for an alleged
failure to deliver the brick at the time
agreed upon by and between the plaintiff
and defendant.
Upon the issnes raised by the pleadings
trial by jnry was had, resulting in a
verdict and Judgment for plaintiff: The
defendant appeals. AT the trial the de-
fendant requested the court to instruct the
jury to the effect that the parties to a
written contract, such as the one sued upon
in this case, could, after the same had been
partially performed mutually agree that
the same should be Cancelled and at an
end, and that each party should be re
leased from. all obligations Hereunder
that such an agreement for the annulmeni
and rescisslon of such a contract need moi
be in writing; that if the jury believe
from the evidence that such an agreement
for the annulment or rescission of the con
tract set out in the plaintiff s COM
plant was made, as the defendant in his
answer alleges was made, then the parties
would be bound by such an agreement, ,ano
the jury must find for the defendant. THAI
if the jury believe from the evidence thai
the plaintiff and defendant, as alleged in
the affirmative defense pleaded in the de
fendant'S answer, orally agreed between
themselves that the contract set out in the
plaintiffs complaint should be and was a
an end, and that both Of the parties thereto
should be and were released from all obi
cations hereunder, then the jury should
find for the defendant. The court refused
to SO instruct the jury, and failed to give
any instructions whatever upon the ques
ton of RECESSION of the contract. In SC
ruling appellant claims the court erred
And in order to determine the question
thus presented, it becomes necessary to re
vert to the testimony.
To be continued.
METEOROLOGICAL REPORT.