Borum v. Garland , 9 Ala. 452 ( 1846 )

ORMOND, J.

It is doubtless true, as contended by the counsel for the plaintiff in error, that a party who claims a right to rescind a contract, must put the opposite party in statu quo, by returning, or offering to return, the subject matter of the contract, if in his possession. But, notwithstanding this is the law, it cannot be questioned, that parties may-by agreement rescind a contract in part, and permit it to stand for the remainder. The declaration of the plaintiff, that the defendant should not have the slave, Henry, any longer, if accepted, or agreed to, by the defendant, had the effect of rescinding the contract as to him, and left it in force ,as to the other slave, and whether it was accepted, or agreed to by the defendant, was for the jury to determine.

We agree fully with the argument urged, that to produce this rescission, the proposal must have been acceded to when it was made, and this leads to tlfe consideration of what is really the only question in the case, the meaning of the explanatory charge of the court. The court having at the instance of the plaintiff, charged, that the contract was not rescinded, unless the defendant assented to the proposition to rescind, when it was made, added, “ that if Garland elected to treat it as a rescission, it would have that effect, and plaintiff would have no right afterwards to complain, if it were so treated.” We do not consider this explanation of the court open to the objections urged against it. It appears to be merely an amplification of the charge, which had been previously given. The construction put upon it by the counsel for the plaintiff, makes it nullify the charge which had been given, and which this was certainly not intended to destroy, but to explain. This the court may have thought necessary, because the charge was framed by the counsel for the plaintiff. It is possible the court meant to say, that the “ assent” of the defendant to the plaintiff’s proposition, might be shown by his conduct at the time, and subsequent, in connection with his reply. Be this as it may, we cannot perceive how the jury could have been misled by it. Whether the consent of the defendant is called his “ assent,” or his “ election,” is wholly unimportant, and if, when it was given, it was supposed there was any ambiguity in it, or that the court intended by the explanation to retract any portion of the charge which it had just given, application should then have been made to the Court, and an explicit response demanded.

It 'is too late to speculate now upon the possibility that the jury may have misapprehended it, when there does not appear to be any just ground .for misapprehension.

Let the judgment be affirmed.