GOODMAN v. HAYNES AUTOMOBILE CO., 205 F. 352

KOHLSAAT, Circuit Judge (after stating the facts as above). [1] The evidence in this case does not as a matter of law sustain the contention that plaintiff either by act or word consented to the rescission of the contract. At the first opportunity, and from then on, he insisted on defendant’s performance on his part thereof. He diligently, by telegrams, letters, visits, and tenders, insisted on his right to have defendant perform. Under the facts of the case, the court cannot say, as a matter of law, that there was a mutual abandonment and rescission of the contract.

Defendant, by its flat refusal to perform, relieved plaintiff from any obligation to make further tender. In Anvil Mining Company v. Humble, 153 U. S. 540-552, 14 Sup. Ct. 876, 880 (38 L. Ed. 814), it is said: ■‘When one party to a contract renounces it and refuses to perform, tlie other party may treat the contract as broken and abandon it without demand or tender of performance, and recover as damages the profits he would ban' received through full performance.

Such an abandonment is not a rescission of the contract, but a mere acceptance of the situation which the wrongdoing o£ the other party has brought about.” To the same effect are United States v. Behan, 110 U. S. 344, 4 Sup. Ct. 81, 28 L. Ed. 168; Packers’ Fertilizer Co. v. Harris, 42 Ind. App. 240, 85 N. E. 375; Missouri Coal Co. v. Pomeroy, 80 Ill. App. 144. The law does not require a party to do a useless act. Stokes v. Mackay, 147 N. Y. 223, 41 N. E. 496. It requires the concurrent acts of both parties, both to make and to rescind the contract. In Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780, 44 L.

Ed. 953, the court adopted the rule laid down in Hochster v. De la Tour, 2 El. & Bl. 678. and Johnstone v. Milling Co., 16 Q. B. Div. 467 (English), where it is said; ‘‘When one parry assumes to renounce the contract, that is, by anticipation refuses to perform it, he thereby so far as he is concerned, declares his intention then and there to rescind the contract.

Such a renunciation does noti of course, amount to a rescission of the contract, because one party to a contract cannot by himself rescind it: but by wrongfully making such a renunciation of the contract he entitles the other party, if lie 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.” Substantially to the same effect are Anvil Mining Co. v. Humble, supra, West v. Platt, 127 Mass. 367, and Worthen v. Wilmot, 30 Vt. 555. In the margin we cite many cases holding that it is not necessary to tender to one who announces in advance that the tender will not he accepted.

Even were the law otherwise, the question as to whether or not the circumstances here advanced warranted a finding that plaintiff had by his conduct or otherwise assented to the rescission of the contract was a question of fact, involving the intention of both parties, and should have been submitted to the jury. Hanson & Parker v. Wittemberg, 205 Mass. 319, 91 N. E. 383; Gwynne v. Ramsey, 92 Ind. 414; Hobbs v. Columbia Falls Brick Co., 157 Mass. 109, 31 N. E. 756.

This would be particularly the case as regards the cashing of the $700 check by plaintiff after his tender, and defendant’s refusal to accept the $1,250. It was not per se a consent to defendant’s abandonment of the agreement to deposit and receive the cash on said check. Plaintiff was not obligated to hold the check for an unlimited time. After all hope of defendant’s ability and disposition to accept the advance and perform the contract, plaintiff was at liberty to deal with the checks as his own, at least to the extent of reducing them to cash, without abandoning his right to have the contract enforced.

In the condition of the evidence, it was not for the court, as a matter of law, to say whether, under all the circumstances of the,case, plaintiff had consented to the rescission of the contract. The rulings of the court on the several demurrers and upon the motion to take from the jury all tend to the same proposition; i. e., that the facts adduced established, as a matter of law, plaintiff’s waiver of any rights he might have had under the contract. This we do not deem to be the law of the case.

The judgment of the District Court is therefore reversed, with direction to grant a new trial, overrule the demurrer to the reply, and proceed further in accordance herewith. Mathis v. Thomas, 101 Ind. 119-121; Thompson v. Lyon, 40 W. Va. 87, 20 S. E. 812; Schlib v. Pendleton, 70 Mo. App. 454; Martin v. Bank of Fayetteville, 131 N. C. 121, 42 S. E. 558; Ansley v. Hightower, 120 Ga. 719. 48 S. E. 197; Beatty v. Miller, 47 Ind. App. 494, 94 N. E. 897; Supreme Tent Knights of Maccabees of the World v. Fisher, 45 Ind. App. 419, 90 N. E. 1044; Gorham v. Farson, 119 Ill. 425, 10 N. E. 1; Williams v.

Patrick, 177 Mass. 160, 58 N. E. 583; Root v. Johnson, 99 Ala. 90, 10 South. 293; Hall v. Insurance Co., 57 Conn. 105, 17 Atl. 356; Natural Gas Co. v. De Witt, 130 Pa. 235, 18 Atl. 724. 5 L. R. A. 731; Lacy v. Williams, 24 Mich. 479; Mechem, Law of Sales, §§ 1106, 1107.