1 Richmond v. Smith, 15 Wall. 429 (1872).
2 As to the powers of the parties to a contract of sale to rescind it, see Story on Sales, ch. xiv.
3 See Bailey v. James, 11 Grat. 468.
4 Towers v. Barrett, 1 T. R. 130; Hinde v. Whitehouse, 7 East, 571; Brinley v. Tibbets, 7 Greenl. 70; Barnett 9. Stanton, 2 Ala. 181; Minor v. Kelly, 5 Mon. 272; Atkins v. Howe, 18 Pick. 16; Henshaw v. Robins, 9 Met. 84; Willoughby v. Moulton, 47 N. H. 205 (1866); Clough v. London & Northwestern Railway Co., Law R. 7 Exch. 26, 35 (1871).
5 Brinley v. Tibbets, 7 Greenl. 75; Lindsey v. Gordon, 13 Me. 60; Barry v. Palmer, 19 Me. 303; Weeks v. Robie, 42 N. H. 316 (1861); Cushing v. Wyman, 38 Me. 589; Cushman v. Marshall, 21 Me. 122; Clough v. London & Northwestern Railway Co., supra.
6 Hunt v. Silk, 5 East, 419; Beed v. Blandford, 2 Younge & Jerv. 278; Shields v, Davis, 6 Taunt. 65; Franklin v. Miller, 4 Ad. & El. 599; Coolidge v;. Brigham, 1 Met. 517; s. c. 5 Met. 68; Baillie v. Kell, 4 Bing. N. G. 638; Turnpike Co. v. Commonwealth, 2 Watts, 433; Conner v. Henderson, 15 Mass. 319; Havelock v. Geddes, 10 East, 564; scinding is a question of fact for a jury. But where the party desiring to rescind a contract has been defrauded, and it is impossible for him to reinstate the other party in precisely the same condition, it will be sufficient if he do or offer to do all that is in his power in this respect, in order to entitle him to recover his advances.1
§ 1388. Where the contract is not performed according to the terms of the agreement, as where work is badly done, or left unfinished, or not completed at the stipulated time, but the party for whom it is done receives the benefit thereof, he may, if sued on the contract, reduce the damages by proof of the insufficiency or incomplete performance of the work or the injury resulting to him from the delay. Nor does it matter in such a case whether the contract were entire and the price specifically agreed upon.2 If the contract be entire, as we have seen, the party ordering the work may rescind; but if he do not rescind by refusing the work, but elect to accept it and receive the benefit of it, he will be responsible to the workman for the worth of the labor done and nothing more, whatever be the price originally agreed upon.3 So, also, if there be a specific agreement as to time which is not complied with, it only operates to reduce the damages in a suit for the price, unless the party not in fault refused to accept the performance after the stipulated time, and received no benefit.4 But if, despite the delay, he avail himself of acts done under the contract and receive benefit therefrom, he is liable on a quantum meruit.1 Where there has been no intentional departure from the contract, or failure to perform it, but the party has acted in good faith, endeavoring to fulfil it according to its terms, he may recover, in case of failure, what his services are worth less the damage caused by such failure; but in such cases proof of an intention bond fide to perform the contract fully is indispensable to a recovery.2
Grounsell v. Lamb, 1 M. & W. 352; Cobb v. Hatfield, 46 N. Y. 533 (1371). See Simpson v. Crippin, Law R. 8 Q. B. 14 (1872); Hening v. Punnett, 4 Daly, 543 (1873).
1 Mason v. Bovet, 1 Demo, 69; ante, § 1085, 1086. See Emerson v. McXamara, 41 Me. 565.
2 Havelock v. Geddes, 10 East, 564; Grounsell v. Lamb, 1 M. & W. 352; Baillie v. Kell, 6 Scott, 379; s. c. 4 Bing. N. C. 638; Hill v. Green, 4 Pick. 114; Harrington v. Stratton, 22 Ib. 510; Parish v. Stone, 14 Ib. 198; M'Allister v. Reab, 4 Wend. 483; Chapel v. Hickes, 2 Cromp. & M. 214; Allen v. Cameron, 2 Tyrw. 907.
3 Ibid.; Oxendale v. Wetherell, 9 B. & C. 386; Read v. Rann, 10 Ib. 439; Clark v. Baker, 5 Met. 452. See ante, § 34-37 et seq.; Lucas v. Godwin, 3 Bing. N. C. 744.
4 Lucas v. Godwin, 3 Bing. N. C. 737. See ante, § 1327; Burn v. Miller, 4 Taunt. 745; Alexander v. Gardner, 1 Bing. N. C. 671.
§ 1339. Where there are mutual covenants, it is sometimes difficult to determine when they are to be considered dependent and when independent,3 and, therefore, when it is necessary in the declaration to aver performance and when not; and in this respect we cannot do better than to quote the conclusions of Mr. Sergeant Williams, who, after a full examination of the authorities, lays down the following rules: "1st. If a day be appointed for payment of money, or part of it, or for doing any other act, and the day is to happen, or may happen, before the thing which is the consideration of the money or other act is to be performed, an action may be brought for the money, or for not doing such other act before performance; for it appears that the party relied upon his remedy, and did not intend to make the performance a condition precedent; and so it is where no time is fixed for performance of that which is the consideration of the money or other act."4 "But, 2d. When a day is appointed for the
1 As to what constitutes waiver in the case of building contracts, see Wildey v. Fractional School Dist. of Paw Paw, 25 Mich. 419 (1872).
2 Veazie v. Bangor, 51 Me. 509 (1863). And see Veazie v. Hosmer, 11 Gray, 396; Walker v. Orange, 16 Gray, 193; Bee Printing Co. v. Hichborn, 4 Allen, 63.
3 See Marsden v. Moore, 4 H. & N. 500; Smith v. Boston & Maine Railroad, 6 Allen, 262. By indenture, A. agreed to make certain advances to B. for building and finishing a house on A.'s land, and seventy days after its completion to convey the house and other land to B., and B. agreed to build the house and furnish all the labor and materials, and, upon delivery of the deed, to repay to A. all his advances with interest, and to pay a certain price for the land, either in cash or by his note payable in five years and secured by mortgage of the land. Held that the agreement to deliver the deed and to pay the money were mutual and dependent stipulations. Phillips v. Soule, 9 Gray, 233 (1S57).