Bagley v. Clarke.

if the surety was not discharged by an actual rescission of the contract, he was discharged by nothing else.

If, therefore, the judge erred on that question, there must be a new trial as to both.

VII. The exceptions at fols. 81 and 101 are well taken. VIII. There should be a new trial, costs to abide the event.

William R. Stafford, for Respondents.

I. The only question at issue was, whether the parties by their acts had not rescinded the contract for service made by the defendant Clarke with the plaintiff. If by operation of law such was the case, or if in the opinion of the court a verdict for the plaintiff would be set aside as contrary to law and evidence, it was clearly the duty of the court to non-suit or direct a verdict for defendants. (Stuart v. Simpson, 1 Wend. 376; Rudd v. Davis, 3 Hill, 287.)

II. Although there is no precise rule applying to a breach of contract which settles whether it has been abandoned or not, yet if the act of one party be such as necessarily to prevent the other from performing on his part according to the terms of the agreement, the contract will be considered as rescinded. (Dubois v. Del. & Hud. Canal Co., 4 Wend. 285.)

And if performance of the condition of a bond be prevented by the omission of the obligee, the obligor is discharged. (Whitney v. Spencer, 4 Cowen, 39.)

The rule may now be considered well settled, that wherever the contract becomes incapable of being performed substantially as the parties intended, by the voluntary act of one of the parties, the other is not bound to proceed. (Kleine v. Catara, 2 Gallison, C. C. Rep. 61.)

III. The mutual consent of the parties to, and their concurrence in the rescission claimed by defendants, is evidenced by acts as to which there is no dispute.

The first witness called by the plaintiff, William J. Wood, testified, that the defendant Clarke, instead of working for plaintiff, worked for the firm of which plaintiff was a mem

Bagley v. Clarke.

ber, and at piece-work, and was paid, not by the year, but at an entirely different rate, and in a different manner, by the firm, and not by plaintiff solely.

This is substantiated by Clarke, by Gerrit Smith, and by B. P. Gurney, and is nowhere denied.

IV. Upon such a state of facts, created by the plaintiff himself, who, by twice altering the terms of compensation, and transferring the benefits and control of Clarke's services to his copartnership, had deprived Clarke of all right of action against him under the agreement, and stripped it of all mutuality, the agreement itself was clearly merged in the parol, and executed subsequent arrangement of the parties. (Dearborn v. Cross, 7 Cowen, 47; Latimore v. Harsen, 14 John. 330; Allen v. Jaquish, 21 Wend. 628; Ballard v. Walker, 3 John. Cs. 60.)

The agreement, therefore, being rescinded in part, was rescinded in toto. (Raymond v. Bearnard, 12 John. 274.)

V. The fact of the agreement being under seal can make no real difference. The new arrangement here was not a mere executory agreement, but was carried into effect and fully acted upon by the parties, and everything was done except the actual destruction of the writing itself. (De Peyster v. Pulver, 3 Barb. 284; Healy v. Utly, 1 Cowen, 345; Barnard v. Darling, 11 Wend. 27; and cases under point IV.)

All the advantages of this new arrangement were with the plaintiff. By recognizing his alterations as to the compensation, extending his liability so as to embrace his firm, and accepting employment under them, (not as agents of plaintiff, but as principals,) we were deprived of any right of action under this agreement against Bagley, while, at the same time, exposed to actions by all of that firm. The estoppel must be mutual, and as the plaintiff was a party, he is equally bound. (Vide opinion of Justice BosWORTH.) The judgment should therefore be affirmed.

BY THE COURT. HOFFMAN, J.-The question as to the surety on the bond, the defendant Gurney is perfectly clear.

Bagley v. Clarke.

He covenanted to be responsible for the performance of a contract, which secured to his principal a fixed salary of four hundred dollars for the first three years, and five hundred dollars for the remaining two years, and bound him to serve the plaintiff and no one else. Without the sureties' knowledge or consent this is changed into a contract, making the rate of compensation depend upon the quantity of work, rendering it wholly indefinite, making the term of service uncertain, and binding the principal to the commands of two other persons in connection with the plaintiff. Upon the settled law of principal and surety, this alteration discharged the latter. (Mc Williams v. Mason, 6 Duer, 276; The Northwestern R. R. Co. v. Whinray, 26 Eng. L. & Eq. 488, and cases cited,) is directly in point. And as to Clarke, the principal in the bond, the plaintiff changed the agreement in most important particulars. He failed to perform his part of the contract. He gave new employers to the defendant. He varied the terms, and assented to the defendant's laboring under such new terms. At one time he relinquished all claim upon Clarke, telling him that he could not go on with the business; his means were locked up; that he could not give him work, and advised him to apply to the Smiths; that he must do the best he could for himself.

To hold this defendant liable for the liquidated damages on a penal bond, under such circumstances, would be unjust and unprecedented. (Parsons on Contracts, 190, 191, note R and cases.)

The admission of evidence at the trial, which is the subject of some exceptions, was of testimony tending to show acts and declarations proving the fact of rescission or alteration; not a variation of an existing agreement still executory, by means of parol evidence. None of the exceptions of the plaintiff can be sustained.

Judgment affirmed with costs.

Frost v. Smith.

SAMUEL FROST, Plaintiff and Respondent v. ALbert Smith, Defendant and Appellant.

1. When an appeal is moved in its order on the calendar, the court will presume that the case therein has been settled, unless moved to interfere, on affidavits alleging the contrary.

2. On appeal from a judgment entered on the report of a referee, the appellant may be heard on exceptions taken to the referee's conclusions of law upon the facts found, although the printed case does not contain any of the evidence.

3. But, in such case, he cannot be heard upon his exceptions to the findings of fact. It must be assumed that they are found upon competent and sufficient evidence.

4. Where a defendant contracts to make, and deliver from time to time, as required, six engines, and he delivers only two, and on request to deliver another refuses, without cause, so to do; the contract may be treated as rescinded, and any moneys advanced to him, over and above the worth or contract price of the two delivered, may be recovered back.

5. Where in an action to recover such excess and any balance due on general account, the answer admits advances on account, and alleges no defense except that the engines delivered, and other work, &c., performed by defendant, amount to more than all payments and advances made to him; and the judgment for plaintiff is for the actual balance, charging him with all he had received from the defendant, and crediting him with all he had paid, it will not be reversed merely because the referee held that such a refusal as stated in the proposition (No. 4) was a rescission of not only that contract, but of a subsequent one for the bargain and sale of other two engines, only one of which had been delivered; especially when the case contains no evidence or other matter showing affirmatively that it was error not to credit defendant for the engine not delivered under the last contract. (Before HOFFMAN, PIERREPONT and ROBERTSON, J. J.) Heard June 14, decided June 30, 1860.

APPEAL by the defendant, from a judgment entered on the report of George W. Stevens, Esq., as referee. This action was commenced the latter part of January, 1859. The printed case contains the summons, complaint, reply, order of reference, the referee's report of his findings of fact and conclusions of law, (dated December 24, 1859,) the defendant's exceptions, the judgment entered on the report, and the notice of appeal. It does not contain any evidence given on the trial.

Frost v. Smith.

The complaint alleges that, at divers times, between 9th September, 1856, and 5th December, 1857, Benjamin Frazee, having certain dealings and an account with defendant, paid on said account, and lent and advanced to defendant,various notes and sums of money, and the defendant made and delivered to said Frazee various machines, and other articles, some of which were defective; and that there was a balance due to said Frazee, of $2,240.47, besides interest. That this claim was assigned to plaintiff.

The answer denies most of these allegations, and alleges that the defendant made, sold and delivered to Frazee, various articles of machinery, and other articles, and paid large sums of money to and for Frazee, amounting altogether to the sum of $5,614.07; and that the various notes and sums of money mentioned in the complaint, were paid on account of this-and claims a balance due to defendant of $1,285.19, besides interest.

The referee finds, as facts:

1. That a contract was made between Frazee and defendant, on 2d September, 1856, by which defendant was to make for Frazee six small steam engines, at $212.50 each, and that Frazee was to pay the cost of making the patterns. 2. That defendant made the patterns, which were worth $122.88.

3. That defendant made and delivered the said engines. 4. That defendant sold and delivered to Frazee fixtures. for the engines, to the value of $210.

5. That, in January, 1857, a further contract was made between defendant and Frazee, for six other engines, to be delivered to Frazee from time to time, as he should require the same, at $225 each; that Frazee should pay defendant for altering the patterns for the said engines.

6. That defendant altered the patterns, and that the alteration was worth $16.25.

7. That defendant made, constructed and delivered two of the said engines to Frazee.

8. That, in January, 1857, defendant bargained and sold