Edwards, Hudmon & Co. v. Whyte & Hull , 70 Ala. 365 ( 1881 )

BKICKELL, C. J.

Instructions to the jury must be construed in connection with the evidence, and when several are given, touching the same matter, in connection with each other. When thus construed, they may not be strictly correct, if taken as separate, independent propositions, and yet may be free from error which would compel a reversal of the judgment. If the first charge of the court had asserted that one party to a contract, without the assent of the other, could rescind it, and relieve himself from its obligations, or for liability to answer for his breach of it, as a legal proposition it would be erroneous. For, it can not be matter of doubt, as a general rule, that, in the absence of fraud, a contract can not be rescinded without the consent of both parties to it. The point of contention, in the court below, was not whether either party, plaintiffs or defendants, could, without the consent of tlie other, have rescinded the contract. The contention was, first, whether there were two contracts between the parties; the plaintiffs insisting that two had been made, for the purchase of cotton, in different quantities, and of different qualities. The defendants insisted, there was but one contract, for the sale of a specified quantity of cotton, of a particular quality. The plaintiffs insisted, one of the contracts had been, by the assent of both parties, rescinded. The defendants insisted, thp one contract which, as they claimed, was made, had been rescinded by the assent of the parties. Upon either theory, the rescission relied upon was not the independent act of either party, but the concurring act of both parties. Construing this instruction as the appellants now construe it, there was no controversy or evidence to which it was applicable, and it was abstract. If abstract, though erroneous in point of law, the error does not authorize a reversal of the judgment.—1 Brick. Dig. 336, § 13. We are disinclined to adopt this construction. When the instruction is construed in connection with the evidence, and with the succeeding instructions, it is plain, the rescission, or cancellation, to which it refers, is of the contract the plaintiffs insisted had been rescinded by mutual consent. The instruction is entitled to a fair construction, though it may not be very clear in expression. If injury from its want of clearness was apprebended, the court, on request, would have removed the apprehension, by giving an explanatory charge.

The fourth instruction is the assertion of a mere truism. A party, averring an excuse for a failure or refusal to perform a contract, assumes the burden of proving the excuse; or, if, as is postulated in the seventh instruction, he avers a rescission of an admitted contract, to excuse non-performance, the onus of proving the rescission rests upon him. Whatever fact a plaintiff-is bound to prove to support his action, or a defendant is bound to prove to make out his defense, must be satisfactorily proved. The minds of the jury must be reasonably satisfied of the existence of the fact. We-can not suppose that the court intended to assert that any higher degree of proof than this was required to support the defense. If the defendant feared, because the words clea/r and satisfactory were conjoined, the jury would be misled, an explanatory instruction would have obviated the misleading tendency, and upon them rested the duty of requesting the instruction.

The judgment is affirmed.