Carney v. Newberry , 24 Ill. 203 ( 1860 )

Catón, C. J.

The first instruction given for the plaintiff, we think, was erroneous. It was this : “ That if Newberry tendered hops, under the contract, in the spring of 1856, in good faith, but such hops proved inferior and not of the quality required by the contract, such failure would not release, nor could it be taken advantage of by the defendant, unless it was willful or intentional on the part of the said Newberry; and the said plaintiff might make tender of hops, under the contract, the next fall and at subsequent times of delivery, and claim payment therefor.”

By the terms of the contract, the plaintiff’s intestate was bound to deliver a certain quantity of good, merchantable hops, in the spring and fall of each year for several successive years. Those tendered in the spring of 1856, the proof shows, wore not merchantable, and were for that reason declined, and the instruction announces the proposition, that if the party tendering the hops did so in good faith, believing them to be good, this failure to perform the contract would not justify the defendant to abandon the contract, and refuse to receive any more hops under it. The question of good or bad faith could have nothing to do with any of the consequences legitimately flowing from a failure to deliver the hops, according to the terms of ' the contract. If the good faith would not be an answer to an action for damages, for the breach of the contract, no more would it be to any other remedy to which the defendant was entitled. Here was a failure to fulfill the contract for the delivery, of the spring of 1856, as total and complete as if no hops at all had been tendered. It was not a case where a few pounds, or even a single bale, was inferior, but all were bad, or at least the proof would have justified the jury in so finding. This was, then, a substantial breach of the contract, for which we think the defendant would have been justified in repudiating <\ or abandoning it, and refusing to receive any more under it. If one failure was not sufficient, how many would be ? Must she wait till two, or three, or four failures had occurred before she was authorized to abandon this contract, and make other provision for future deliveries? If that failure would not have justified this course, then a greater number would not, and she must be kept in suspense for the whole time. The simple failure of itself did not rescind the contract, and absolve one party from tendering and the other from receiving the hops in future, but it authorized the party to rescind it. To avail herself of this right, a positive, affirmative act was required,—a notice to the other party not to deliver any more hops, for she had rescinded the contract,—and this, too, within a reasonable time after the failure. She could not lie by till the next lot was actually tendered, and then repudiate the contract and refuse to receive them. Whether she did rescind the contract, as she had a right to do, is not for us now to inquire. That will be for the jury to determine upon another trial. We see no error in the rule laid down for estimating the damages.

The judgment must be reversed, and the cause remanded.

Judgment reversed.