185. In the case of a mutual contract, where load, did not absolve the defendant from his the one promise is the entire consideration of obligation to go after the second load, but that the other, and the acts to be performed are con- he should have done all in his power to perform current-as for a sale or exchange of property the full contract on his part, and if the plaintiff on each side-neither party is obliged to convey failed on his part, the defendant would have absolutely, if the other declines conveying on his remedy in damages. (1.) The plaintiff's enhis part; but the party claiming damages for gagement did not go to the whole consideration breach of the contract must show, either a or matter to be done by the defendant. (2), readiness and offer to perform on his part, or The plaintiff's performance in regard to each else that he was excused therefrom by the con- load was to be subsequent in time to that of sent or conduct of the other party; and this the defendant, and hence could not be a conwill be sufficient. Faulkner v. Hebard, 26 Vt.dition precedent, to the defendant's liability. Keenan v. Brown, 21 Vt. 86.

452.

186. Courts will never construe a contract 190. Under an agreement to account for so as to make its stipulations conditions prece- certain notes after certain costs of a suit were dent, where such construction would work a paid, it was held, that payment of the costs was hardship, unless clearly so expressed; but will not a condition precedent to the maintenance rather construe such stipulations as indepen- of an action for an account, but that the agreedent agreements. Taylor v. Gallup, 8 Vt. ment only gave an authority to retain to an amount equal to such costs, or to adjust the

340.

187. Where A by his bond covenanted to amount in the action. Woodward v. Harlow, pay B a certain account, the amount to be set-28 Vt. 338.

tled and adjusted by C, and to be paid in one 191. An action will lie upon a note payable year from the date of the bond-Held, that it at a fixed time in specific articles "to be deliverwas not a condition precedent that B should ed at any place in L where the payee should procure the adjustment by C within the year, elect," without averring or proving any election but if so adjusted after the expiration of the year, but before suit brought, an action would lie upon the bond. Ib.

of the place of delivery. This election is not a condition precedent, but a mere privilege, which is waived by not being seasonably made, 188. The plaintiff held and claimed to be and passes the election to the maker, who in owner of a note made by the defendant, and such case could elect his own place of payment payable to A or bearer, and had a suit pending [in L] and notify the payee, and a tender at thereon against the defendant. The defendant such place would be good. Peck v. Hubbard, held a note against A. The plaintiff promised 11 Vt. 612. See Russel v. Ormsbee, 10 Vt. 274. the defendant that if he would give a new note Welch v. Bradley, 41 Vt. 309. for the one in suit he (the plaintiff) would 192. The dependence or independence of show the defendant property of A sufficient to covenants depends upon the good sense and satisfy the note against A. Thereupon the de- meaning of the contract, and their precedency fendant gave the plaintiff a new note for the upon the order of time in which the intent one in suit, and the suit was dropped. In an of the transaction requires their performance, action upon the new note;-Held, that the fail- rather than from the arrangement of the covenure of the plaintiff to show the defendant prop-ants, or the structure of the instrument. Kettle erty of A whereon to secure the note against v. Harvey, 21 Vt. 301.

A, was no defense; that the surrender of the 193. The defendant made an assignment to former note and the settlement of the suit was the plaintiff, absolute in terms, of a lease, and a sufficient consideration for the new note; that at the same time gave a separate writing agreethe note and the undertaking of the plaintiff, ing to surrender possession by a future day although mutual, were independent contracts named, and the plaintiff at the same time gave or promises, and that each party had a remedy the defendant a writing agreeing to pay certain on the promise in his favor, without perform- arrearages of rent then due to the lessor, and a ing his part of the contract. Plumb v. Niles, 34 Vt. 230.

further sum at a future day named. The plaintiff neglected to make the stipulated payments, 189. The defendant contracted to convey on and the defendant refused to surrender posseshis boat two loads of wood for the plaintiff to sion by the time fixed. Held, that the defendPort Henry, at a specified price per cord; and ant was liable in ejectment ;-that the lease was it was agreed that if the defendant could not a contract executed, and not dependent upon get out of the creek, where the wood lay, with the contemporaneous executory agreement as to a full load, the plaintiff was to complete the payment. Strong v. Garfield, 10 Vt. 497. load at a certain wharf. Held, that the failure 194. The defendant had attached the plainof the plaintiff to complete the first load at the tiff's property upon a writ against a third perwharf, whereby the defendant was compelled son, and the plaintiff had sued the attaching to sail to Port Henry with only two-thirds of a officer therefor. The parties then entered into

mutual covenants, that the plaintiff should dis-say that the words of the parties do not express continue his suit, and, in consideration thereof, their own intention. Held to be a penalty, that the defendant should pay the plaintiff the where so expressed in a bond, given on the sale full value of the property attached, to be ap- of property and the good will of a business, praised by certain persons named, by a day conditioned that the obligor should refrain from named. The plaintiff discontinued his suit, and prosecuting the same business. Smith v. Wainthe defendant then prevented the making of the right, 24 Vt. 97. See Whitcomb v. Preston, 13 appraisal. Held, that the covenants were not Vt. 53. dependent upon the appraisal to be made; that 198. Whether joint, or several. Separate this was but an incidental provision in the agree- considerations proceeding from two covenantees, ment, designed to facilitate its execution on the and separate interests to be received by them, part of the defendant; and that the plaintiff do not make a covenant, in terms joint, a sevcould sue and recover upon the defendant's eral covenant. Distinctive words qualifying covenant to pay, and make proof in court of the the covenant, such as to them respectively, or value of the property. Smith v. Edmunds, 16 to them and each of them, are necessary to make Vt. 687. the covenant several. Catlin v. Barnard, 1 195. The defendant sold the plaintiff eight Aik. 9. But see Sharp v. Conklin, 16 Vt. 355. stoves for $200 and received payment. He deliv- 199. The several defendants executed to the ered six of them, and gave a bill of sale stating plaintiff a writing, in terms, we hereby agree that "six are now delivered, and the other two to indemnify E M (the plaintiff) for all damto be delivered at Hyde Park in two months ages and costs," &c., "by reason of his havfrom date, and if the eight are not sold in one ing become bail," &c. To each signature year from date, I am to take back two of them there was indicated a certain sum, as, "$10.00," and pay $50 and interest." The two stoves not "$5.00," &c. Held, that, as the contract was having been delivered as agreed, the plaintiff joint in its terms and object, and the subject sued and got judgment therefor and collected matter was entire, it was not made several by his damages, $55. At the end of the year, the plaintiff having been unable to sell three of the six stoves delivered, gave the defendant notice thereof, and that two of them were ready for 200. Several persons, not partners, were him at the place named, and demanded the jointly indebted to K, and three of them (the payment of the $50, and interest. In an action defendants) gave to the others (the plaintiffs) a therefor ;-Held, that the plaintiff was entitled writing requesting them to pay K, concluding, to recover that sum; that the two stipulations "and we will settle with you for our share.” of the defendant were entirely distinct; and The plaintiffs paid K, and brought their action that a satisfaction paid for breach of the first declaring upon this as a joint promise, alleging was not a satisfaction of the second, which was, in effect, a contract for rescission as to two of the stoves, if unsold at the end of the year. Sawyer v. McIntyre, 18 Vt. 27.

the sums set against the signatures, which might indicate the rate of contribution among the defendants. McCullis v. Thurston, 27 Vt.596.

that the defendants' share was a certain named sum. Held, on demurrer, that the promise was joint, that it was upon good consideration, and that it was not necessary to aver that any balance had been agreed upon as the defend

MODIFICATION ;— RESCISSION; POWER
TO STOP PERFORMANCE.

196. The plaintiff covenanted to deliver certain quantities of coal before certain specified ants' share. Scott v. Keith, 32 Vt. 246. dates, and the defendant covenanted to pay "for the above-named coal" a certain price III. per hundred bushels, "to be paid the first of each month for all delivered." Held, that the defendant's covenant was not independent, but 201. Modification. A contract cannot be only bound him to pay monthly, on condition altered except by another contract of equal that the plaintiff had delivered the coal accord- force. Thus, a bond cannot be altered or suing to the contract. Lawrence v. Davey, 28 Vt. perseded by, or merged in, an oral agreement merely. Patrick v. Adams, 29 Vt. 376.

264.

197. Penalty Liquidated damages. 202. Where a contr.ct under seal is subse(1.) Where there is any reasonable doubt upon quently altered by the parties by a writing not the face of a written contract how the parties under seal, or by a verbal agreement, the whole intended a sum named therein, whether as a becomes a simple contract, and the rights, penalty or as liquidated damages, it will be con- liabilities and remedies of the parties are therestrued as a penalty merely. (2.) It is a settled after to be determined by the rules applicable general rule, that where the sum is named as a to all simple contracts. Briggs v. Vt. Central penalty, and there is no stipulation that it shall R. Co., 31 Vt. 211. 45 Vt. 433. be regarded as liquidated damages, it can only 203. A subsisting sealed contract becomes be regarded as a penalty. It would require reduced to a simple contract by a subsequent very strong evidence to authorize the court to parol agreement modifying it ;-as, by a subse

quent written agreement engrafted upon it. In 211. The plaintiff, by engagement of the desuch case the remedy is assumpsit, and not cov-fendant, boarded a man in the defendant's serenant. Hydeville Co. v. Eagle R. & Slate Co., vice. Afterwards the defendant took in a part44 Vt. 395. Sherwin v. Rut. & Bur. R. Co., ner in the same business, and the plaintiff con24 Vt. 347. tinued to board such person, who continued in 204. Where the plaintiff had covenanted the employment of the partnership. Held, that under seal to deliver certain quantities of coal mere knowledge of the fact of the partnership by certain specified times, and had delivered did not require the plaintiff to change his mode part, but not according to his covenant either of charging, and that the defendant was liable as to time or quantity, and the defendant then for the whole board bill. Taggart v. Phelps, agreed by parol that if the plaintiff would con-10 Vt. 318.

tinue to deliver the coal the defendant would 212. A substitution, by parol agreement, take no advantage of the contract, but would for the place of delivery of goods, as named in pay for all the coal then or thereafter to be de- a written contract, is good, being acted upon. livered, irrespective of the contract ;-Held, Hunt v. Thurman, 15 Vt. 336. that the plaintiff could recover in assumpsit for 213. By the contract, the plaintiff was all the coal then or thereafter delivered. Law-bound to furnish a certain number of hop-poles rence v. Davey, 28 Vt. 264. within a certain time, and the defendant to pay

205. A simple contract reduced to writing therefor a certain price. The plaintiff delivered may be varied or changed, in any way, by a sub- only a part within the time fixed, and aftersequent verbal agreement. Flanders v. Fay, wards the defendant sold out the contract to M, 40 Vt. 316. Sherwin v. Rut. & Bur. R. Co., and M then agreed with the plaintiff to extend 24 Vt. 347. the time for delivery, and within such extended time the plaintiff made full delivery. The case showing a subsequent assent by the defendant to such modification of the agreement, and that he treated it as a still subsisting contract ;— Held, that he was liable to pay for the poles. Lane v. Sprague, 36 Vt. 289.

206. Aliter, as to contracts under seal, which cannot be varied by a mere parol contract, whether in writing or not; since such a contract is inferior to the original. Sherwin v. Rut. & Bur. R. Co.

207. In regard to all written contracts, where alterations are made without writing, 214. It seems, that where one sets up, in the substituted agreement all virtually rests on defense to an action for breach of contract, the mere oral evidence, and an action must be pre- waiver of a strict performance by the substitudicated upon the altered contract; and if the tion of something different [as a further day original contract is set forth, it is merely as in- for the delivery of articles sold], he must show ducement. Ib. Dana v. Hancock, 30 Vt. 616. performance according to the substituted con208. A contract under seal between the ditions, or a recovery may be had, counting maker and payee of a promissory note, by upon the original contract. Hill v. Smith, 32 which the maker agreed to deliver and the Vt. 435. payee to receive certain property in satisfaction of the note, was held to be a substitute for, and to supersede and extinguish the note, and was a bar to an action thereon. Bryant v. Gale, 5 Vt. 416. 19 Vt. 551.

209. A new note, given merely in substitution for two previous notes which were in law satisfied, was held to be subject to the same defense. Hurd v. Spencer, 40 Vt. 581.

215.

Lawrence v. Dole, 11 Vt. 555–6. Where parties under a special contract as a building contract-deviate from the original plan agreed upon, and the terms of the original contract do not appear to be applicable to the new work, it being beyond what was originally contemplated by the parties, it is undoubtedly to be regarded and treated as work wholly extra, out of the scope of the contract, and may be recovered for as such. But it is 210. Whether a new contract shall super- otherwise, if the original terms are not inapplisede and take the place of a former one, is mat- cable, and there is evidence from which it may ter of probable intent. If the new contract be be inferred, that it was the intention of the parinconsistent with the continuance of the former ties that the new work should be subject to one, the old contract is released by entering in- those terms-as, times and mode of payment. to the new, although of the same grade; but Boody v. Rut. & Bur. R. Co. (U. S. C. C.), 24 where not so inconsistent, and the new contract Vt. 660. only provides a new mode of discharging the 216. Rescission.

Inadequacy of consider

former one, it produces no effect upon the for- ation may be evidence of fraud; but upon mer, unless or until the new be performed;- such inadequacy alone, a contract cannot applied to the case where an innkeeper, having be set aside or rescinded. Kidder v. Chama bag of gold of his guest, to keep, was request- berlin, 41 Vt. 62. Harrington v. Wells, 12 Vt. ed by the guest to take it across the way to a 505. neighbor's, for him to keep over night. McDaniels v. Robinson, 26 Vt. 316.

217. A mistake or misunderstanding as to the meaning of the terms of a contract, gives

neither party the right to rescind. Montgomery other, but must be left to his action, or crossv. Ricker, 43 Vt. 165. action. Hammond v. Buckmaster, 22 Vt. 375. 218. The parties being in partnership, the 21 Vt. 204. defendant sold all his interest in the partner- 224. Where the consideration of a contract ship effects to the plaintiff. It was afterwards is the purchase of a thing non-existent, or discovered that the inventory and estimates of wholly without value, or where the restoration the effects, which the parties had before them of the consideration is in the nature of things as their guide for mutual propositions, were impossible, no offer to rescind is necessary in erroneous, by reason of which, as the plaintiff order to a defense in an action upon the conclaimed, he was induced to pay the defendant tract. Smith v. Smith, 30 Vt. 139.

too much for his interest; but the sum paid 225. Under certain circumstances, one of was, in fact, less than the apparent amount of the parties to a contract may rescind it without the defendant's interest, and the defendant sold the consent of the other; as where, by the his interest without any idea of future account- terms of a contract, concurrent acts are to be ability. Held, that while the sale remained in performed as a delivery of the property by one force for the plaintiff's benefit, he could not party and a payment of the price by the othermaintain an action to recover back part of the if either party should refuse to perform his part consideration paid. Wood v. Johnson, 13 Vt. of the contract, the other party would be at liberty to treat this as an abandonment of the contract, and justify a rescission. Fletcher v. Cole. 23 Vt. 114.

191.

219. A contract to be rescinded ab initio as to part, and at the election of one party, must be wholly rescinded. Fay v. Oliver, 20 Vt. 118. 21 Vt. 528.

226. A purchaser cannot rescind a contract induced by misrepresentation and fraud, after 220. The plaintiff contracted to purchase of he has wholly disposed of the purchased propthe defendant two parcels of land for one price, erty, by offering to restore what he has received and the defendant conveyed one parcel at the for it, although disposed of before discovery of time, and stipulated to convey the other on re- the fraud. He must rely upon other remedies. ceiving payment for both, and put the plaintiff McCrillis v. Carlton, 37 Vt. 139. in possession of both. The defendant refused, 227. The defendants secured under a conon demand, to convey the second parcel, on the tract with the plaintiff the use of a patented alleged ground that the full price had not been machine, belonging to him, for a certain yearly paid. In general assumpsit to recover the con- rent, so long as they, at their election, should sideration paid for the second parcel;-Held, continue to use it. After using the machine that although the parties, in their estimates of for some years and paying the rent, the defendthe values in their negotiations, referred two-ants claimed to have acquired the right from thirds of the whole sum to the first parcel and another source to use the patent, and gave noone-third to the second, it was still one entire tice to the plaintiff that they should pay no purchase; and that as the contract had been so longer; but they, or their vendees, continued far executed that the plaintiff had realized man- to use the machine. In an action upon the conifest benefit under it, and the parties could not tract to recover the agreed rent;-Held, that be placed in statu quo, it was not in a state to the contract estopped the defendants from denybe rescinded at all, and much less as to the ing the plaintiff's title so long as they, or second parcel only, except by mutual consent, their vendees, continued to use the machine, in although the full price might have been paid- the absence of fraud in the making of the conand that the plaintiff could not recover. Ib. tract, or unless the plaintiff's title had expired;

221. The party who would rescind a con- and that the defendants could not terminate the tract, though procured by fraud, must be in a contract to pay without surrendering the macondition to put the other party in statu quo;-chine, and were liable to pay for such use until as, to restore a promissory note taken for goods surrender. Sherman v. Champlain Transportprocured by fraudulent representations. Poor ation Co., 31 Vt. 162. v. Woodburn, 25 Vt. 234.

228. But held otherwise as to the right, un

222. This does not necessarily imply a ten-der the same contract, to use a patent for a mader, or distinct offer to return the note. Where chine built and owned by the defendants. Ib. he has not parted with it, the production of it 229. The plaintiff sold land to the defendat the trial, if required, to be disposed of under ant, taking his notes therefor, and gave him the direction of the court, is sufficient. Ib. a bond conditioned to convey upon payment of Hodgeden v. Hubbard, 18 Vt. 504. the notes, and in the meantime the defendant to

223. Where a contract has been in part ex- have possession, but on neglect to pay, the ecuted and each party has received a partial bond to be void and the plaintiff to have the benefit from the contract, so that the parties right to re-enter and enjoy. In an action upon cannot be placed in statu quo by a rescission, the notes ;-Held, that it was no defense, as to one party cannot rescind for the default of the any of the notes, that the defendant had not

paid the one first falling due, nor had taken ment of the note. Arbuckle v. Hawks, 20 Vt. possession;-that the bond was void only as 538.

against the plaintiff, at his election. Chandler 234. So held, where the purchaser had taken v. Marsh, 3 Vt. 161. a lease of the land from the vendor after the

230. The plaintiff had contracted to deliver note fell due, and had occupied it as tenant;to the defendant certain furnace castings, and that this was a rescission by mutual arrangeto a certain amount, to be paid for partly in ment. Porter v. Vaughn, 26 Vt. 624. labor and the balance in cash in one year. After 235. The plaintiff conveyed a farm to F a delivery of part of the castings, the defend- and took back a mortgage, which remained unant refused to receive a load of the castings paid, and, in the expectation of getting back a sent under the contract. Held, that the refusal quitclaim from F, entered into a contract to was such a violation of the contract, preventing convey the same to the defendant, and took the its further execution by the plaintiff, as ab- defendant's notes therefor. The defendant did solved him from his obligation to deliver the not then fully understand the state of the title, balance of the castings, and to give the stipu- but soon after was informed of it, and then related credit for the amount delivered, and to pudiated the contract and demanded back his take payment in labor; and that an action of notes. The plaintiff refused to rescind, and book account lay immediately to recover for the offered a good guaranty that the defendant castings delivered. Tyson v. Doe, 15 Vt. 571. should have a good deed, which the defendant 20 Vt. 121. 21 Vt. 22. declined, and abandoned the land. Afterwards 231. The plaintiff procured and paid for the plaintiff received the quitclaim from F and some tea at the defendant's store, and shortly rented the place for one year and occupied it after returned it-"it not being good." The another year, and then sold it. In an action defendant received it, saying he should have upon the defendant's notes, the plaintiff claimed some good tea soon, and would replace the tea to recover his loss in the transaction. Held, returned with good tea. The defendant re- that the facts shown amounted to a practical tained both tea and money and never delivered abandonment of the contract by the plaintiff, any other tea, nor did the plaintiff call for it. and operated as an acceptance of the rescission Held, that here was no contract of absolute re-offered by the defendant, and took effect, as of scinding so as to make the defendant a debtor, that time, and thus left the notes without coneither for the money, or for the tea, unless sideration. Henry v. Martin, 39 Vt. 42. called for; and that the plaintiff could not maintain an action on book therefor. West v. Cutting, 19 Vt. 536.

236. The defendant, having procured a horse of the plaintiff by exchange, within a reasonable time returned the horse to the plaintiff, 232. The plaintiff sold to the defendant a complained that the horse was lame and unhorse and a clock for a harness and two prom-sound, and "requested to trade back and callit issory notes of the defendant, by falsely and no trade"-offered "to trade back and have fraudulently warranting the horse to be kind things as they were before the trade," and and safe in harness, whereas the horse had such asked to rescind the trade," which the plainan inveterate habit of kicking as to be nearly or tiff refused. The county court ruled that this quite worthless. The plaintiff had not deliv- did not constitue a rescission of the contract. ered the clock. The defendant, upon discover- Held, (by a majority), erroneous; that the eviing the vicious habits of the horse, requested dence tended to prove a rescission, and should the plaintiff to receive back the horse and to have been submitted to the jury to determine surrender the harness and notes, which the what the parties understood by it. plaintiff declined, and brought suit upon the Bliss, 43 Vt. 299. notes. Held, that as the horse might have constituted the main inducement to the bargain, the defendant should be allowed, at his option, to treat it as entirely invalid ;-and a judgment for the defendant below was affirmed. Morrill defendant took the oxen, one E informed him v. Aden, 19 Vt. 505.

Gates v.

237. The plaintiff sold the defendant a yoke of oxen which were eight years old, but which the plaintiff fraudulently represented to be only seven years old. On the second day after the

that, in his opinion, judging from their appear233. A agreed to sell B a parcel of land for ance, the oxen were nine years old. The dea price named, for which B gave his note, and fendant continued to use the oxen for five days took possession of the land, and received from longer, when he returned them to the plaintiff, A a written agreement to convey if the note and notified him that the oxen were not as repshould be paid when due. The note was not resented; but the plaintiff refused the receive paid at maturity. Held, that A had his election them, and brought suit for the price. Held, to collect the note, or to rescind the contract and that the defendant had exercised his right of retake back the land; but that having made scission within what, under the circumstances, his election by obtaining possession of the was a reasonable time. Matteson v. Holt, 45 land by ejectment, he could not enforce pay- Vt. 336.