Jones v. Anderson , 82 Ala. 302 ( 1886 )

SOMERYILLE, J.

— 1. When this case was last before ns on appeal, the judgment was reversed for the defect of failing to specify, in either the verdict or judgment, the separate value of the several articles sued for in the action, which is one of detinue under the statute. — Jones v. Anderson, 76 Ala. 428. The same defect occurs in both the verdict and judgment in the present record, and must operate as a reversal of the judgment.- — Townsend v. Brooks, 76 Ala 308; Code, 1876, § 2944; Jones v. Pullen, 66 Ala. 309, and authorities in the brief of appellant’s counsel.

2. The obligation assumed by the defendants, in their written contract, was to deliver, within a reasonable time, the timber sold by them to the plaintiff as the consideration to be paid for the wagon, teams, and fixtures here sued for. The court properly charged the jury, that what was a reasonable time did not depend on the ability of the defendants to make such delivery. Where a contract imposes some duty not purely personal — that is, which may be done as well by others as the promisor himself — his inability to perform by reason of accident, want of means, insolvency, or other reason, does not excuse non-performance. The damage of the breach, in all such cases, must fall on him who has failed to keep his promise. — 2 Whart. Contr. § 323; Reid v. Edwards, 7 Port. 508; McGehee v. Hill, 4 Port. 170.

3. The parol evidence was properly admitted to explain the ' signification, attached, among person's engaged in the timber business, to the words “hewn timber, to average one hundred and twenty feet, and to class B No. 1 good.” — Jones v. Anderson, 76 Ala. 428.

4. When a purchase of property is made by one person from another, by a false pretense, or other like fraud, the party defrauded may elect to rescind the sale within a reasonable time after discovery of the fraud. But there can usually be no rescission, unless bbth parties can be restored practically to the condition in which they were before the. contract was made. This involves the restitution of whatever of value each may have ’received under the contract. • Where this can be done, it must be done, or an offer made to do so by the party proposing to rescind; unless,he show an excuse for failing to make such offer, as that it would have been fruitless, or for other good reason.

Under this rule, the plaintiff should have offered, before the trial, to return the written obligation of the defendants, as a necessary part of the offer to rescind. He could not retain this,; and, at the same time,-insist on re-taking his property. — Evans v. Gale, 43 Amer. Dec. 614; Kimball v. Cunningham, 3 Amer. Dec. 230; Bishop on Contr. § 679; 1 Whart. Contr. § 285.

Reversed and remanded.