Davis v. Dickey , 23 Ala. 848 ( 1853 )

GOLUTHWAITE, j.

The agreement ou tlie part oflhe plaintiff in error was, in legal effect, that if the clock, which formed the consideration of the note sued on, did not keep time, he would make it do so, either by repairing it, or giving another clock in exchange. Had Davis failed to comply with the agreement, it would have authorized Dickey to rescind, by pursuing the proper course, (McNair v. Cowper, 4 Ala.,) or, as the case was under twenty dollars and tried upon its equity, ho might have claimed an abatement upon the note to the extent of the damage ho had sustained by the failure of the other party to do what ho had agreed to do. From the nature of the agreement, the utmost damage which Dickey could have sustained from the failure of the other party, was the difference between the value of the clock had it kept time, and its actual value. — • To entitle the defendant to a verdict, he should have shown that he had taken the necessary steps to rescind the contract, or that the clock after the repairs were made was valueless. If it was worth anything, he could not keep it and pay nothing. The evidence, however, show's, that although the clock was of no value as a time-piece, it was worth more than a nominal amount, and there is no evidence tending to prove that the defendant had done any thing to rescind the contract. Upon this evidence, the farthest that the court could have gone, was, to give judgment against the defendant for the amount which the clock was actually worth, and there was error in rendering judgment in his favor.

The judgment must be reversed, and the cause remanded.