a mere tortious act for which the purchaser has his rem- 1900. edy; but it has no effect as a rescission of the contract. Judgment. Where, however, there is such reservation to re-sell on DUBUC, J. default, and the vendor exercises that right, it operates as a rescission of the original sale." The same principle was adopted in our own Court in Sawyer v. Baskerville, 10 M. R. 652. In that case, an unpaid for machine had been re-sold by the vendors under the agreement made between the parties; the present Chief Justice (Killam, C. J.,) held that in re-selling the machine the plaintiffs must be taken to have elected to rescind the contract and rely upon their claim for damages. In the present case, the right to re-sell in case of default to pay by the defendant was reserved by the agree ment. If the plaintiff has chosen to exercise his right, he must stand the consequences thereof. That The fact, stated by the learned Judge, that the defendant notified the plaintiff that she would not carry out her contract, must be presumed to have been brought out in evidence, and this serves to explain the action of the plaintiff in at once re-selling the property to McCrae. notification by the defendant amounts to nothing more than an intention or a desire to have the agreement rescinded; and, by immediately re-selling the property to another, the plaintiff, on his part, evidenced an intention of acceding to the desire of the defendant expressed in her notification, and of treating the contract as rescinded. He may also be assumed to have taken for granted that, by the notification, he was relieved from giving the notice mentioned in clause 7 of the agreement. This is, at least, a fair inference to be drawn from the facts in question. It is argued that the only mode of rescission was that provided by the agreement, viz., by the plaintiff mailing to the defendant a notice intimating an intention to determine the contract, and that, although he sold the pro 1900. perty to McCrae, he may buy it back or in any other way Judgment. enable himself to give possession to the defendant on the DUBUC, J. 1st of June. In the first place, if the mode provided in clause seven of the agreement is the only one available, all that the plaintiff could claim under its terms would be the keeping of the money already paid. It is not stipulated that he could claim any unpaid instalments, or recover damages for the breach of the agreement. In the second place, the suggestion or supposition that the plaintiff may buy back the property sold to McCrae is merely the intimation of a possibility; it is not a positive fact on which to base an intention not to rescind; while the re-selling the property shortly after default made by the defendant indicates without much doubt a deliberate intention to rescind the first agreement. In the natural course of things, a man does not go to the trouble and expense of having an agreement for sale of a valuable property prepared by a solicitor and executed by himself for mere amusement and without any reasonable purpose. At the time of the sale to McCrae, the defendant was in default, and the plaintiff was entitled to rescind; and, as it would be inconsistent and unreasonable for the plaintiff to sell the same property to two different parties, it seems manifest that the plaintiff, by executing the second agreement, considered and treated the first one as rescinded. Otherwise, he would have the two agreements subsisting, and might collect the whole of the purchase money from each of the vendees. Such a proposition is too inconsistent to be entertained. There is no doubt that, on and after the 2nd of April, the defendant being in default, the plaintiff could sue him for the instalment of the $400 due under the agreement; but his selling the property to McCrae operated as a rescission of the agreement, and his right to enforce any of its terms by action as on a subsisting contract was at an end. 1900. Judgment. In my opinion, the appeal should be allowed with costs. RICHARDS, J. RICHARDS, J.-Appeal from Emerson County Court. On 10th March, 1900, plaintiff agreed in writing under seal with defendant to sell to her a hotel property, consisting of land and buildings, for $4,500, payable $100 cash down; $400 on 1st of April, 1900; $1,000 on 1st of June, 1900, and the balance as provided by the agreement. Defendant was to get possession on 1st of June, 1900. By the agreement defendant covenanted to pay plaintiff the purchase money on the days and times provided for payDefendant paid the $100 cash payment, but made default in the payment of the $400 due on 1st of April, and her husband told plaintiff that she could not pay it. ment. On 17th of April, 1900, plaintiff re-sold the property to one McCrae by a written agreement, which is not produced. On 26th of April, 1900, plaintiff brought this action for the $400 due 1st of April, and a verdict was given for plaintiff for $400 with costs. Defendant appeals from the verdict on the ground that the contract sued on had been rescinded, and on the further ground that plaintiff had by the sale to McCrae disabled himself from suing. The plaintiff sets up in reply that there is no evidence of an agreement to rescind, and that the evidence does not show that the sale to McCrae is unconditional or that it prevents plaintiff from carrying out his sale to defendant, if defendant should carry out on her part the agreement of 10th March, and that plaintiff might in any case before the 1st of June (the date fixed for possession to be given defendant) have bought back from McCrae, and so been able to carry out on his part the agreement of 10th of March. 1900. The law applicable to such defences as those set up by Judgment, defendant and urged in his grounds of appeal seems to me RICHARDS,J. to be well stated by Chief Justice Hagarty in McCord v. Harper, 26 U. C. C. P., at top of page 104, as follows: "To show that a vendor has finally elected to rescind the contract or avail himself of the right to avoid it, there must be something done between him and the vendee by which he clearly gives the other to understand that he decides to avoid it, and that the relation no longer exists between them, or he must do something directly affecting the vendee in his position or interest, as, for example, a sale to another." I find no evidence establishing an agreement, or notification by plaintiff of intention, to rescind. But the sale to McCrae is in my opinion an act of the plaintiff that directly affects the defendant in her position or interest. Though the written agreement with McCrae is not produced, the plaintiff's own testimony is, I think, sufficient to justify a finding that such agreement was one for the unconditional sale of the property. He says that he has sold the place to McCrae, and on being expressly asked if that sale was conditional, he only says that it was understood between him and McCrae that if defendant paid within four or five days the agreement would be cancelled, but that this understanding was a verbal one only and was not in the written agreement. I think he meant that this was the only condition. Such understanding, if it existed, could not bind McCrae. But, if it could, the four or five days had more than elapsed before plaintiff sued. The decided cases show that where the vendor in an agreement for sale has conveyed to a stranger he cannot sue the purchaser for the purchase money. I see no difference in principle between such a case and one where the vendor in derogation of the agreement for sale, bindingly agrees to sell to a stranger. 1900. It seems to me that in a case like this the plaintiff's own statements should be given the fullest construction against Judgment. him that is reasonably consistent. If so, his evidence RICHARDS,J. shows, in my opinion, a binding and unconditional sale to McCrae on 17th of April, and before this action. Such a sale seems to me to be an act of the vendor "directly affecting the defendant in her position or interest," and which the defendant is entitled to avail herself of as a defence to this action. In Pym v. Campbell, 6 E. & B. 370, cited by plaintiff's counsel, the agreement was not to come into existence till approved of by a third party, whose approval was never got, and it was held therefore that there had never been an agreement. The present case differs in being one of a completed agreement with McCrae, to which it is sought to attach a verbal and unenforceable condition. It was argued for plaintiff that as the agreement of 10th of March provided a method of rescission there could be no valid rescission except by that method. That contention might perhaps have weight if set up by the defendant against the validity of the rescission. But it is not open to plaintiff, after attempting to rescind, to take advantage of his own wrong in not following the method prescribed. In my opinion the appeal should be allowed with costs, the verdict for plaintiff should be set aside, and a verdict. entered for defendant with costs. Appeal allowed with costs. Ver- |