, 1892-01-14
A BRICK CONTRACT.


"A Case which is Interesting to Con.
tractors and Business Men
Throughout the State Relatiye
to Breach of Contract.
Concluded from yesterdays edition,]
1t appears from the statement of facts in
the record that the respondent commenced
to deliver the brick to appellant on Janu-
airy II, 1880, and from chat time up to
Match 28th appellant accepted and re-
ceived all that were offered, but that he
then notified respondent that he would re-
ceive no more, for the reason, as he says,
that they were not being delivered accord
ing to agreement. On April 4, 1880, the
parties had settlement of their accounts,
for $3.50, which he claims was in full pay
ment of all demands up to that date, and
which was so stated in the check. Re
spondent admits the settlement, and also
admits that he received the check, but
says there was a balance still due him Of
$3.50 on account. Appellant asserts that at
the time he made this payment the con-
tract sued on was rescinded and abandoned
by mutual consent. He specifically testi-
fled, in substance, that when he paid the
$3.50 he expected it was accepted in full
payment for all brick he had received, and
that he was not going to have any more
trouble about it; that when he told re-
spondent he was not going to receive any
more brick the latter did not object to it,
but responded that if he, appellant, had
ANYTHING he would take it out of him, but
as he had not he would let him 60; that be
said he did not care whether any more
brick were taken by appellant or not, but
if he had anything he would take it out of
him. He further testified that after the
time of the payment by him of the $3.50,
respondent did not deliver or tender to him
anv more brick. and did not demand any
payment for brick delivered or rendered
until.sAugust /, 1890, which was Just prior
to the commencement Of this action.
On the other hand, the respondent test
ified that he never at any time agreed or
consented to rescind the contract, but, on
the contrary, IN compliance with its terms,
continued to tender brick to appellant as
fast as manufactured up to May 7th, at
which time he completed the delivery of
the entire quantity specified in the CON
tract, and that he notified appellant when
each lot was delivered, and upon his re-
fusal to accept, sold them ii the market
for the highest price he could obtain, and
credited appellant with the net proceeds.
There Is little, il any, disagreement be-
tween counsel for the respective parties as
to the law applicable to this case. It seems
to be conceded that such contracts as the
one
scinded by mutual parole consent of the
parties concerned, but counsel for respon-
dent insist that no such mutual consent is
shown in this instance. and that the court
therefore rightfully refused to Instruct the
Jury as requested by appellant. They argue
that there was no evidence upon the ques-
ton Of the rescission Of the contract, and
that the court properly SO found, and cite
authorities to show that it is error for the
court to instruct the jury upon questions
upon which there is no evidence
We have no doubt Of the soundness of
the doctrine enunciated in the cases re-
ferred to, but we fail to find it announced
i'll any of the cases that where there is a
conflict of testimony upon an issue raised
by the pIeadings It is proper for the court
to refuse to instruct the jury upon the
point in controversy. The question upon
which the refused instruction was requested
was controlling one in the trial Of this
case, and whether the contract was aban-
doned or not is a fact that may be inferred
from the acts and declarations Of the par
ties to it. These acts and declarations were
in evidence, and we are clearly Of the opin-
ion that the instruction requested by coun-
sci for appellant was relevent to the issue
and pertinent to the evidence, and should
have been submitted to the jury.
Appellant also contends that the court
erred il instructing the jury as follows:
ll you SpGllGNG lEOul bllS GVluSI1CC Ull1b oil
the material allegations Of the plaintiffs
complaint have been proven by a prepon-
derance of the evidence, then you will find
for the plaintiff This instruction, stand
ing alone, was under the circumstances,
misleading, as it virtually informed the
jury that there were no facts in the case to
be determined other those alleged IN the
complaint The jury might have believed
that all the material allegations Of the
complaint have been proven by prepon-
derance of the evidence, yet, if they also
believed that the contract had been re-
scinded, as alleged in the answer, they
should not have been told to find for the
plaintiff generally.
The court also gave the following in
struction to the jury: ou are instructed
that either party to contract may waive
any of the provisions in his favor. Ii you
find from the evidence that under this
agreement between the plaintiff and de-
fendant that the plaintiff was to commence
delivering brick by December 49, 1889, and
to deliver the same from time to time on,
according to defendants needs, and It you
find that the defendant continued to wait
for any length of time after said December
is, 1889, to receive brick from plaintiff,
then the defendant has waived his right to
have the plaintiff deliver brick according
to his needs during all the time he has ac-
cepted the brick from plaintiff, and cannot
recover any damages for any failure of the
plaintiff to deliver the brick to the defend
ant according to his needs during that
time. Counsel contend that appellant
anv ~ delav II r9 delivering fhe brick by re-
spondent. notwithstanding they were ac-