Crawford v. Robie , 42 N.H. 162 ( 1860 )

By the Court.

It is apparent, on the case, that the consideration for the notes was the bond to convey the land, and not the land itself. The validity of the notes would not be affected by a refusal of the obligor to convey the land, if he had been bound to make a deed; but the payment of the notes was a condition precedent to any such duty; nor would their validity be affected by any refusal of the promisor to pay the balance of them, and to complete his contract. Each party has his remedy upon the security he holds for any failure of the other party to fulfill his agreement.

A contract may be rescinded, where one of the parties refuses to proceed and comply with his stipulations, if the other party elects to rescind the entire agreement, and he does so within a reasonable time, and the case is so situated that the parties can be restored, substantially, to their original positions. Here the refusal is on the part of the maker of the note; he has paid part, and refuses to pay more. If the obligor had chosen to rescind the bargain, he could have repaid the money, and refused to go on with the contract. He has not done so, and the defendant can not relieve himself of his contract by his own act alone. Allen v. Webb, 24 N. H. 278; Webb v. Stone, 24 N. H. 282.

The finding of the court, consequently, was correct.

The ruling as to the admission of the plaintiff as a witness was correct. The statute of 1857 (ch. 1952, sec. 1) provides that “ no person shall be excused or excluded as a witness in any civil suit, by reason of interest in the event of the same, as a party or otherwise(Laws, page 1868) while the statute of 1858 (ch. 2090, see. 2) provides that nothing in these acts shall in any manner affect the law in relation to the attestation of wills and testaments, or any instrument required by law to be attested; nor shall either party be allowed to testify, or the deposition of such party be used, where the adverse party is an executor or administrator, unless such executor or administrator shall elect to testify himself as a witness, and in such case both parties may testify.

Though the court have been referred to many authorities to the position (in Bac. Ab., Stat. I. 5) that “ a thing within the intention is as much within the statute as if it were within the letter;” and it is argued that the reason of the exception of these statutes applies as strongly in the case of a party rendered incompetent to testify by insanity, as in the case of an administrator; yet they are of opinion that it is inexpedient to introduce by their decision any new exception to the simple and plain rule of the statute. If evil is found to follow from the law in its present fonn, it will be for the legislature to provide a remedy.

Exceptions overruled.