Armour v. Eichelberger ( 1872 )

Mr. Justice Thornton

delivered the opinion of the Court:

One view which may properly be taken of the evidence in this case, dispenses with the necessity of any discussion- as to the effect of a rescission of the contract of purchase, or the questions chiefly argued, whether the notes were given for extension of time of payment, or in discharge of interest which had accrued.

The decided weight of the testimony is, that the rescission of the contract was the result of the mutual agreement of the parties.

The vendee failed to comply with the terms of purchase, informed the vendor that he could not pay for the property, and requested him to take it back. It is true, he desired the surrender of the notes in controversy. This was refused, and the vendor assumed control of the property, but no demand was made for the notes by the vendee. He acknowledged his utter inability to comply, voluntarily refused to propeed to ■ fulfil his stipulations, and the jury might fairly have indulged the inference that he absolutely renounced all benefit arising out of the contract.

The vendor was anxious and ready to perform. He had made a good bargain, and the market value of the property had depreciated since the sale. The vendee, on the contrary, though he had made some improvements, had enjoyed the rents and profits for nearly three years, was still liable for the ‘ whole of the purchase money, proposed a rescission, and, though he expressed a wish for the notes given for interest accrued, he yielded the control of the property, and acquiesced in the collection of rents, and the possession of the notes, by the vendor, without any complaint.

We are not satisfied that any injustice has been done, and affirm the judgment.

Judgment affirmed.