Wheeler v. Parks , 81 Mass. 527 ( 1860 )

Merrick, J.

There in no doubt concerning the right of the plaintiff to recover the contents of the note declared on. This is not contested by the defendant. The only question in controversy between the parties arises upon the items charged in the account filed in set-off

It appears that the horse, cow and yearling, of the value of which he thus seeks to avail himself in defence, were sold and transferred to the plaintiff" in pursuance of a contract between them for the sale and purchase of certain real and personal property. No part of the consideration therefor was to be paid until sufficient deeds of the real estate, according to the terms and provisions of the contract, were made and delivered to the plaintiff This was never done; and consequently the defendant never became entitled to demand or receive the stipulated payment. But there was no rescission of the contract; there was merely a failure on the part of the defendant to perform his part of it. In consequence of this failure, no duty devolved upon the plaintiff. He had a right to retain the property which had been conveyed to him; and the question of damages for the nonperformance of the contract was and is left unsettled. Undoubtedly, if the plaintiff should hereafter make any claim on that account, the value of the personal property which was transferred to him, and of which he has availed himself, should be taken into consideration, and proper allowance made therefor. But the defendant, having sold and transferred the personal property in part discharge and performance of the contract on his part, the sale and delivery did not create any debt against the plaintiff; nor subject him to the liability of having the amount or value of it deducted from or set off against any just and legal claim in his favor against the defendant. Congdon v. Perry, 13 Gray, 3. Exceptions overruled.