Mobley v. Pickett , 9 Ala. 97 ( 1846 )

ORMOND, J.

This cas¡e lies within a narrow compass, ^he deceased agreed to rescind the contract, and return the one hundred dollars he had received upon it, if the defendant in error was unable to exchange his Georgia, for Alabama notes. As the condition to be performed, was one in which the deceased had no interest, it was, in effect, an unconditional rescission of the contract, and his failure to tender the Alabama notes, and demand the slave, is proof of his inability to make the exchange.

This will be evident, if we reverse the case, and suppose the plaintiff to be insisting on the contract as subsisting, and after a tender, to bring this suit for the slave. The conclusive answer to it would be, that his omission to tender the Alabama notes, within a reasonable time, was evidence that he elected to consider the contract at an end, and as it could not be in force as to one of the parties, and rescinded as to, the other,- it must of necessity be rescinded as to both.

Let the judgment be affirmed.