fault in his engagement, for he cannot take advantage of his own wrong to defeat the contract. Nor if the failure of the other party be but partial, leaving a distinct part as a subsisting and executed consideration, and leaving also to the other party his action for damages for the part not performed. (2) 1 Generally, no contract can be rescinded by one of the parties unless both can be restored to the condition in which they were before the contract was made. (a) 2 If, therefore, one of the parties has Thus, in Weaver v. Sessions, 6 Taunt. he entitles the other party, if he pleases, to agree to the contract being put an end to, subject to the retention by him of his right to bring an action in respect of such wrongful rescission. The other party may adopt such renunciation of the contract by so acting upon it as in effect to declare that he too treats the contract as at an end, except for the purpose of bringing an action upon it for the damages sustained by him in consequence of such renunciation." In Lake Shore &c. Ry. Co. v. Richards, 32 Northeastern Rep. 402, (Ill. 1892,) however, it was held that where the defendant had broken substantial provisions of the contract and manifested an intention to continue such breaches, the plaintiff could not both abandon further performance and sue for future profits or for damages on account of their loss, but must either treat the contract as rescinded for all purposes so far as it related to the future, or continue to perform himself, as he was not prevented from so doing. However justifiable such a rule may seem at first sight, on principle, it seems harsh and unjust in practice to require an innocent party to elect either to continue performance, knowing that he will not receive the return for such performance for which he has bargained, or to give up all right of action on the contract. 1 A party cannot disaffirm a contract in part on the ground of fraud and affirm it as to the residue, but must rescind in toto, either restoring everything obtained by it and recovering back his payments, or retaining the property and sue for damages for the fraud. Grant v. Law, 29 Wis. 99.-K. 2 If no restoration to the prior condition is possible, the aggrieved party may have compensation in damages. Wooster v. Sage, 67 N. Y. 67; Manahan v. Noyes, 52 N. H. 232; Montgomery Co. v. American Emigrant Co. 47 Ia. 91; Armstrong, &c. Co. v. Kosure, 66 Ind. 545. A buyer must return the thing sold, unless it is entirely worthless. Babcock v. Case, 61 Pa. 427; Dill v. O'Ferrell, 45 Ind. 268. See Brewster v. Burnett, 125 Mass. 68. One advancing money on a sale may rescind and recover the money if the seller fails to comply. Howe Machine Co. v. Willie, 85 Ill. 333. See Green v. Stuart, 7 Baxter, 418. Where a contract is entire, and the buyer is not willing to accept partial performance, he may reject and recover the price paid. Whincup v. Hughes, L. R. 6 C. P. 78; Jenness v. Wendell, 51 N. H. 63; Smith v. Lewis, 40 Ind. 98. But if he accepts, he must seek some other remedy. Mansfield ». Trigg, 113 Mass. 350; Young, &c. Co. v. Wakefield, 121 Mass. 91. See Beetem v. Burkholder, 69 Pa. 249. — K. *680 derived an advantage from a partial performance, or so disposed of property bought that he cannot restore it, (aa) cute a counterpart and pay the rent. B took possession and paid £10 immediately, but A neglected to execute the lease and make the repairs beyond the period of the ten days, notwithstanding which B still continued in possession. Held, that B could not, by quitting the house for the default of A rescind the contract and recover back the £10 in an action for money had and received, but could only declare for a breach of the special contract; for a contract cannot be rescinded by one party for the default of the other, unless both can be put in statu quo as before the contract; and here B had had an intermediate possession of the premises under the agreement. And Lord Ellenborough said: Where a contract is to be rescinded at all, it must be rescinded in toto, and the parties put in statu quo. But here was an intermediate occupation, a part execution of the agreement, which was incapable of being rescinded. If the plaintiff might occupy the premises two days beyond the time when the repairs were to have been done and the lease executed, and yet rescind the contract, why might he not rescind it after a twelvemonth on the same account? This objection cannot be gotten rid of the parties cannot be put in statu quo." So in Beed v. Blandford, 2 Younge & J. 278, where the master and part-owner of a vessel agreed to purchase the moiety of his partner, and having paid the purchase-money and received the title-deeds, which he deposited as a security with a third person, had the entire possession of the vessel given up to him, but his partner afterwards refused to execute a bill of sale, or refund the money; it was held, that an action for money had and received would not lie to recover the purchase-money, as the parties could not be restored to their original situation. Alexander, C. B.. said. "In order to sustain an action in this form, it is necessary that the parties should, by the plaintiff's recovering the verdict, oe placed in the same situation in which they originally were before the contract was entered into. The plaintiff has, by his intermediate occupation, derived the profits of the vessel; if he has not, he might have done so, and it is impossible to say what the defendant might have made, had he, during the time, had any control over it. Under these circumstances, it cannot be said that the situation of the parties has not been altered; and that, by the plaintiff's recovering in this action, their original position may be restored. Besides this, the defend ant's title-deeds have been deposited by the plaintiff as a security for the money advanced to him. How could the defendant, in this respect, be restored to his original situation by this action? He is at the mercy of the defendant for his title-deeds, and cannot recover them by any process in this cause. I think the objection is unanswerable, and that the rule for a nonsuit must be made absolute." And Vaughan, B., said: "The decision in Hunt v. Silk lays down a very clear and just rule in these cases; if the circumstances be such, that, by rescinding the contract, the rights of neither party are injured, in that case, if one contracting party will not fulfil his part of the engagement, the other may rescind the contract, and maintain his action for money had and received, to recover back what he may have paid upon the faith of it." 30. And where one party elects to rescind a contract for fraud, he must return the consideration received before any right of action accrues; and it is not enough to notify the party defrauding, and call upon him to come and receive the goods. Norton v. Young, 8 Greenl. But in the case of Masson v. Bovet, 1 Denio, 69, it was said, that though the general rule is, that the party who would rescind a contract on the ground of fraud, for the purpose of recovering what he has advanced upon it, must restore the other party to the condition in which he stood before the contract was made; yet, where the party who practised the fraud has entangled and complicated the subject of the contract in such a manner as to render it impossible that he should be restored to his former condition, the party injured, upon restoring, or offering to restore, what he has received, and doing whatever is in his power to undo what has been done in the execution of the contract, may rescind it and recover what he has advanced. See further upon this point, per Tindal, C. J., in Fitt e. Cassanet, 4 Man. & G. 903; Blackburn e. Smith, 2 Exch. 783; Junkins r. Simpson, 14 Me. 364; Coolidge r. Brigham, 1 Met. 547 ; Peters v. Gooch, 4 Blackf. 515; Turnpike Co. v. Commonwealth, 2 Watts, 433; Brown v. Witter, 10 Ohio, 142: Johnson v. Jackson, 27 Miss. 498; Allen r. Edgerton, 3 Vt. 442; Luey v. Bundy, 9 N. H. 298; Stevens v. Cushing, 1 N. H. 17; Perley v. Balch, 22 Pick. 283, Downer v. Smith, 32 Vt. 1; Lewis v. White, 16 Ohio, 444; Stevenson v. Polk, 71 Ia. 278. (aa) McCrillis v. Carlton, 37 Vt. 139. he cannot hold this and consider the contract as rescinded because of the non-performance of the residue; (b) but must do all that the contract obliges him to do, and seek his remedy in damages. But where one party has gained an advantage over another by fraud, the rule that the parties cannot be restored to their original condition, will not prevent the defrauded party from rescinding the contract; at least, will not in equity. (bb) If the thing to be done on the one side as the consideration of the agreement on the other side, is to be done at several *times, a failure at one time will not generally authorize 681 the other party to treat the whole contract as rescinded; although even in such continuing cases, this partial failure may be so destructive of the contract as to give the other party the right to consider it as wholly rescinded. (c) It is a general rule, that a party having a right of rescission because of the fault or act of the other, should make known his rescission, as soon as may be after he knows his right to rescind. (cc) 2 Replevin may be maintained for goods sold under false and fraudulent representations, the contract of sale being rescinded. (cd) A defendant, who is a wrong-doer, cannot set up the right of a third person to bar the claim of the plaintiff. (d) Redhibition is a term borrowed from the civil law, and sometimes used by our courts. In a case in Louisiana, it is said to be the avoidance of a sale on account of some vice or defect of the thing sold, rendering it either useless, or so far diminishing its value to the purchaser, that it must be supposed he would not have bought the thing with knowledge of the defect. (dd) (b) And if one party has derived all the intended benefit from a contract, the agreement to rescind the contract will not bar the plaintiff from some remedy. Thus, to an action for goods sold and delivered, it is no defence that the goods were sold in pursuance of a special contract which was afterwards rescinded and annulled by both parties. Edwards . Chapman, M. & W. 231, Parke, B., say ing "A duty arises from the contract of sale, which cannot be got rid of without an accord and satisfaction." 1 Burge v. Cedar Rapids, &c. R. R. Co. 32 Ia. 101. 2 And a notice by a party to a contract that he will not perform may be withdrawn before it is treated as a rescission and so acted on by the other side. Zuck v. McClure, 98 Pa. 541; Nilson v. Morse, 52 Wis. 240. 2. OF CONTRIBUTORY NEGLigence. We have referred in many parts of this work to a liability for negligence, whether this be put on the ground of contract or of A defence very frequently made is that of contributory negligence. The rules of law are well settled on this subject, and the apparent uncertainty of the law in some cases is but the difficulty of applying these rules to the particular facts, which are indefinitely diversified in the numerous cases in which the question arises. If the plaintiff's own negligence was an immediate and a principal cause of the injury, without which it probably would not have occurred, it is certain he cannot recover damages. But, although the plaintiff is proved to have been somewhat negligent, and to have contributed somewhat to the injury by his negligence, he may nevertheless recover, if he can show gross or far greater negligence on the part of the defendant, and also that this negligence was the principal and proximate cause of the injury. Language is sometimes used from which it might be inferred that if both parties are negligent, and the defendant more so than the plaintiff, the plaintiff should recover. (de) The rule may be incapable of exact definition. But we think it is not law, that if both parties are negligent in a nearly equal degree, but the defendant is, on the whole, the most negligent of the two, the plaintiff shall prevail. To sustain the action, a greater than a merely perceptible difference must exist between the two degrees of negligence. (df)1 Whether the defendant used reasonable care, or was guilty of contributory negligence, is said to be a question of fact for the jury; (dg) but the true rule is, that what constitutes contributory negligence is a question of law. And this being determined by the court, the jury then pass upon the question whether the facts in evidence bring the (de) C. B. & Q. R. R. Co. v. Payne, 49 Ill. 499. (df) In a large part of the cases heretofore cited, under the subjects of a master's liability, or a carrier's liability, and in some under Insurance, this question of contributory negligence has arisen. For recent cases in which it is considered, see Memphis, &c. R. R. Co. v. Blakeney, 43 Miss. 218; Chicago, &c. R. R. Co. v. Pondrom, 5 Ill. 333; Keating v. Central R. R. Co. 3 Lansing, 469; Baltimore, &c. R. R. Co. v. State, 33 Md. 542; Van Shaick v. Hudson River R. R. Co. 43 N. Y. 527. In this case the negligence of the defendant sufficed to defeat the action. In the other cases cited in this note, it was insufficient, and also in Schneider v. The Provident Life Ins. Co. 24 Wis. 28; Transportation Co. v. Downer, 11 Wallace, 129; Kesee v. Chicago & N. W. R R. Co. 30 Ia. 78. (dg) So stated in some of the cases iu preceding note, and in Pfau r. Reynolds, 53 Ill. 212; Chaffee r. Boston, &c. R. R. Co. 104 Mass. 108; Lynch v. Smith, 104 Mass. 52; Mahoney v. Metropolitan R. R. Co. 104 Mass. 73. 1 The doctrine of comparative negligence, although prevailing in a few States, is generally discredited, any negligence on the part of the plaintiff which contributes proximately to the injury defeating all right of recovery. Marble v. Ross, 124 Mass. 44. case within the legal definition of contributory negligence. As to this definition, the authorities cannot be reconciled. For example, it is very common for passengers in railroad cars to put their arms out of the windows. And it is so common for passengers who do this to be injured because of it, that it might seem an almost necessary conclusion that the act was proved to be dangerous, and that the doing of it would incur, without sufficient cause, a real peril, and would therefore be a negligence on the part of the passenger, on which the railroad company might rest their defence, unless gross negligence was shown on their part. So indeed it is held in Indiana, (dh) in Massachusetts, (di) in New York (dj) and in Pennsylvania. (dk) But it is held in Wisconsin (dl) and in Illinois, (dm) that a passenger may thrust or rest his arm out of the window, without negligence or at least without such negligence as constitutes a bar to his action. SECTION IV. ACCORD AND SATISFACTION. Another sufficient defence is accord and satisfaction; which is substantially another agreement between the parties in satisfaction of the former one; and also an execution of the latter agreement. This is the meaning of the ancient rule, that accord without satisfaction is no bar to an action; and it used to be laid down in the earlier books with great exactness, that the execution of the accord must be complete and perfect. (e) So, indeed, it must be now, except where the new promise itself is, by the accord or agreement, the satisfaction for the debt or broken con 82. (dh) I. & C. R. R. v. Rutherford, 29 Ind. (di) Todd v. Old Colony R. R. Co. 3 Allen, 18. (dj) Holbrook v. U. & S. R. R. Co. 12 N. Y. 236. (dk) Pittsburg, &c. R. R. Co. v. McClurg, 56 Pa 294. (d) Spencer v. Milwaukee, &c. R. R. Co. 17 Wis. 487. (dm) Pondrom v. Ch. & A. R. R. Co. 51 Ill. 333. (e) Cock r. Honychurch, T. Raym 203, 2 Keble, 690. Trespass for an assault. Plea, a concord between the parties, that the defendant should pay plaintiff £3, and his attorney's bill, and that he had paid the £3, and was ready to pay the attorney's bill, but he never showed him any. This was held no defence, because the accord was not wholly executed. See also Peytoe's case, 9 Rep. 79 b; Anonymous, Cro. Eliz. 46; Case r. Barber, T. Raym. 450, T. Jones, 158; Bree e. Sayler, 2 Keble, 332; Hall v. Seabright, 2 Keble, 534; Brown r. Wade, 2 Keble, 851; Frentress r. Markle, 2 Ia. 553; Coit v. Houston, 3 Johns. Cas. 243; Watkinson v. Inglesby, 5 Johns. 386; Frost v. Johnson, 8 Ohio, 393; Woodruff v. Dobbins. 7 Blackf. 582; Ballard v. Noaks, 2 Pike, 45; Brooklyn Bank . De Grauw, 23 Wend. 342; Bryant ». Proctor, 14 B. Mon. 457; Bigelow . Baldwin, Gray, 245; Francis v. Deming, 59 Conn. 108; Herr mann v. Orcutt, 152 Mass. 405; Cannon River, &c. Assoc. v. Rogers, 46 Minn. 376; Pettis v. Ray, 12 R. I. 344. |