of uniform organization and jurisdiction, the defendant moved the court to instruct the may be created by the legislature, to which jury to return a verdict in its favor, upon such appeals and writs of error as the general the ground that the evidence was insufficient assembly shall provide may be prosecuted, to maintain the cause of action set forth in and from which appeals and writs of error the declaration, which was overruled. The shall lie to the supreme court in all criminal motion was in the nature of a demurrer to the cases, in cases in which a franchise or free-evidence, and, if defendant desired to avail hold or the validity of a statute is involved, itself thereof, it should have abided by it. and in such other cases as may be provided Instead of doing this, it introduced evidence by law." Under this provision the legis in its behalf, and submitted the cause to the lature was authorized to vest such courts with jury without renewing its motion, thereby appellate jurisdiction in all such cases as, in waiving the error, if error there was, in the the legislative discretion, were deemed prop- decision of the court. Joliet, A. & N. R. Co. er. In four classes of cases-that is, criminal v. Velie, 140 Ill. 59. cases, and those involving a franchise or freehold or the validity of a statute-the legislature is prohibited from making the determination of such appellate courts final. In such cases appeals and writs of error must be allowed to the supreme court. In all other cases in which such courts are given jurisdiction by statute it is left, by the Constitution, discretionary with the legislature to make the judgments of those courts final, or to provide for further appeal or writ of error, as in the legislative discretion shall be deemed proper. It necessarily follows that, since the creation and organization of the appellate courts, the jurisdiction of this court to review the final judgments of those courts, except in the four classes of cases enumerated in the Constitution, is subject to the restrictions created by the legislature; and it follows that we are precluded from the consideration of any assignment of error questioning the determination of the appellate court upon questions of fact.

At the close of plaintiff's evidence in chief,

Where one party to a contract has refused to perform his part of the contract, or has rendered performance on the part of the other impossible, performance on the part of the other is excused. Hawley v. Smith, 45 Ind. 183.

If a man contracts to pay a certain sum of money in consideration that another has contracted to do certain things on his part, and it should turn out, before anything is done under it, that the latter is incapable of doing what he engaged to do, the contract is at an end. Chanter v. Leese, 4 Mees. & W. 295, 1 Horn & H. 224.

Where a contract provided that one party should bore a well and the other should furnish supplies, and the latter refused to furnish the supplies, whereupon the former abandoned the contract, the court held that he was justified in doing so and no recovery could be had against him therefor, but that, since according to his contract he was not to be paid until the well was completed, he could not recover any pay for what he had done. Barrett v. Austin (Cal.) 31 Pac. Rep. 3.

The defendant, however, by its instructions 1, 2, and 3, refused by the court, sought to raise the same question. By these instructions the court was asked to instruct the jury: first, the evidence was not sufficient to sustain a verdict for plaintiff; second, there was a variance between the proof and cause of action stated in the declaration; and, third, that the evidence did not show an abandonment of the contract by the defendant, and the verdict should therefore be for the defendant. Instructions taking the case from the jury should only be given where the evidence, with all the legitimate and natural inferences to be drawn therefrom, is wholly insufficient, if credited, to sustain a verdict for the plaintiff. Simmons v. Chicago & T. R. Co. 110 Ill. 346; Purdy v. Hall, 134 Ill. 298; Pullman Palace Car Co. v. Laack, 143 Ill. 242, 18 L. R. A. 215, and cases cited. Where there is evidence tending to sustain the issues in behalf of the plaintiff, the weight to be given thereto must be submitted to the jury; and, when their finding of fact

breach. Illinois Female College v. Perry, 8 Ill. App. 188.

In case of a conditional contract, upon failure by one of the parties to perform the other may retract. Dodge v. Greeley, 31 Me. 343.

Where one party to a contract refuses to he bound, the other party may avail himself of the refusal and rescind the contract. Allen v. Webb, 24 N. H. 278.

If one party refuses to be further bound by the contract, the other may cease performance on his part. State v. Davis, 53 N. J. L. 144.

When one party refuses to perform, the other may rescind. Weeks v. Robie, 42 N. H. 316.

The refusal of one who has engaged a special train to take it upon the company's refusal to guarantee that he will reach his destination at a certain time will exonerate the company from the performance of its obligation, and it cannot be sued for breach of its contract. Wilcox v. Richmond & D. R. Co. 52 Fed. Rep. 264, 17 L. R. A. 804, 8 U. S. App. 118.

Although insolvency on the part of the purchaser may give the seller a right to refuse to deliver any more goods under the contract, yet, if such refusal is made without due cause, the pur

Where there was a violation of an agreement to extend the time for selling property under a decree of court which was made in consideration of the payment of additional interest, the court says that, "as a rule, if one of the parties violates his agree-chaser may then rescind and refuse to take any ment, the other is thereby released;" and in that case it was held that the additional interest could not be recovered. Etheredge v. Barkley, 25 Fla. 814.

If one engaged to teach a school is assigned to a room on a certain floor, which it is afterwards found cannot be given her, and for that reason she neglects to present herself for employment, the school board is at liberty to treat the contract as at an end, and she can recover no damages for the

more of the goods without being liable for damages. Re Phoenix Bessemer Steel Co. L. R. 4 Ch. Div. 108.

Where defendant agreed to take a sublease from plaintiff and to purchase the furniture left by plaintiff upon the premises, the court held that he was not bound to fulfil his agreement where plaintiff left rent in arrear for which the furniture was liable to be distrained. Partridge v. Souerby, 8 Bos. & P. 172.

has been approved by the trial and appellate, of? Second. Did such acts and conduct, if courts, no question of the sufficiency of the evidence to support the verdict can be raised in this court. It will be proper, therefore, to so far examine the evidence as to enable us to determine whether there was evidence tending to support the plaintiff's cause of action as alleged in his declaration. In the discussion which will follow, it will become apparent that we are of opinion that there was evidence tending to sustain plaintiff's cause of action, as alleged, and that, there. fore, said instructions were properly refused. Whether the evidence, when considered to gether, is sufficient to maintain the plaintiff's case, is a question which does not fall within our province to determine.

you believe from the evidence they existed, warrant the conclusion that they would be continued, and that it was the intention of the defendant to continue such acts and conduct? (3) If the jury believe from the evidence that the defendant railway refused to, and did not, live up to its said contract, in its substantial provisions, and refused to perform it according to its terms, and abandoned the same without the fault of Richards, Maynard & Co., and that defendant prevented Richards, Maynard & Co. from performing the substantial provisions of said contract according to its terms, then the plaintiff is entitled to recover; and it is not necessary that Richards, Maynard & Co. should have The principal question to be determined in been prevented from performing said contract this case arises upon the second and third in- by physical force, in order to give them the structions given at the instance of the plain-right to treat said contract as abandoned by tiff, as follows: (2) If the jury believe the defendant railway, and to recover damfrom the evidence that the defendant, by its ages from said defendant company in this acts and conduct, showed an intention not to suit. If the jury believe from the evidence be bound by said contract, then said Richards that said defendant railway refused to, and Maynard & Co. had the right to treat said did not, live up to its said contract, and contract as abandoned by said defendant, and refused to perform it according to its terms, to bring suit for the recovery of damages at and if you believe from the evidence that any time thereafter, unless you believe from defendant defeated the substantial object of the evidence that the defendant company the contract, or rendered it unattainable by receded from such intention not to be bound, proper performance on the part of the firm prior to the time when said plaintiff chose to of Richards, Maynard & Co., and that defendtreat said contract as abandoned by the de- ant prevented Richards, Maynard & Co. from fendant. An intention can only be known performing the said contract according to its by acts, conduct, or declaration. Your in terms, as above suggested, then the jury may quiry in this connection is: First. Did find for the plaintiff, and assess the damages defendant, by act and conduct, violate the at such a sum as they believe from the evisubstantial terms of the contract, and com-dence that the plaintiff has suffered by reason mit breaches in substantial provisions there- of such breach." Bearing upon the same

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other party, unless he has subsequently renewed his obligation thereon. Adams v. Boston Iron Co. 10 Gray, 495.

Where by the nondelivery of part of the thing | not afterwards enforce the contract against such contracted for the whole object of the contract is frustrated, the party making default renounces on his part all the obligations of the contract. Freeth v. Burr, L. R. 9 C. P. 208, 43 L. J. C. P. 91, 29 L. T. N. S. 773, 22 Week. Rep. 370.

Hennessy v. Bacon, 137 U. S. 79, 34 L. ed. 605, recognizes the right to rescind for failure of the other party.

Plaintiff who fails to perform according to the terms of the contract cannot maintain an action on the contract. Dermott v. Jones, 64 U. S. 23 How. 220, 16 L. ed. 442.

If time is of the essence of the contract one who

But an entire contract cannot be rescinded in does not complete his performance in time cannot part only. Mansfield v. Trigg, 113 Mass. 350.

Party in default cannot sue.

The same result is reached by the decisions which hold that a party in default cannot enforce the contract. If he cannot enforce the contract, of course the other party is given all the advantage which he could have derived from a simple rescission. The question of the right of a defaulting party to enforce the contract is not within the scope of this note, but a few of the cases are cited here by way of illustration.

maintain a suit to compel the other to perform. Slater v. Emerson, 60 U. S. 19 How. 224, 15 L. ed. 626.

Under a contract reciting: "Bought fleeces and agreed to take cloth," the seller of the fleeces cannot sue for nondelivery of the cloth without averring a delivery of the fleeces. Atkinson v. Smith, 14 Mees. & W. 695, 15 L. J. Exch. 59.

In an action by a master for breach of articles of apprenticeship because the apprentice had run away, it appearing that the master had abandoned the trade which he had covenanted to teach, the court held that the duty to teach was a condition precedent and that the plaintiff could not maintain an action without showing that he had performed or was ready to do so. Ellen v. Topp, 6 Exch. 440, 20 L. J. Exch. 241, 15 Jur. 45I.

In an action for the contract price against one who claims to have rescinded the contract, the plaintiff must show that he performed substantially on his part. Robinson v. Brooks, 40 Fed. Rep. 525. One who is himself in default cannot recover damages from the other party who rescinds the Where a person contracts to do certain work for contract. Fancher v. Goodman, 29 Barb. 315. a colt and cow, if he refuses to perform the work Or who is in default. Chicago, B. & Q. R. Co. v. the other party may treat the contract as at an Cochran, 42 Neb. 531.

If a contract is broken by one party he has no right while refusing or unable to perform its terms to complain of the rescission of the contract by the other. McColl v. Frith, 101 N. Y. 677.

One who refuses to comply with his contract at a time when the other party is not in default can

end, and he loses all claim to the animals.
over v. Christy, 20 Ill. 426.

Schoon

The agreement in a contract for the sale of wool to deliver the names of the vessels on which it is shipped is a condition precedent, a breach of which will prevent the maintenance of an action against the purchaser for refusing to take the wool upon

66

sequence of, the acts of the defendant in dis-
regard of its obligations under said contract.
(17) The failure of the defendant to pay,
when demanded, any moneys due and owing
to plaintiff under the contract, was not such
an act or omission, in itself, on the part of
defendant, as to prevent the plaintiff com-
pleting the contract.

proposition, more or less directly, the court gave to the jury, at the instance of the defendant, its 7th, 12th, 16th, and 17th instructions, as follows: (7) You are instructed that, if the defendant committed breaches of the contract, still, if, from the evidence, you believe that such breaches did not defeat the substantial object of the contract, or render it unattainable by proper performance on the Upon an examination of the evidence for part of the firm of Richards, Maynard & Co., the purpose of determining the propriety of then the plaintiff cannot recover, and your the instructions, it will be found that it tends verdict must be for the defendant." "(12) to prove that shortly after the plaintiff's firm The jury are instructed, as a matter of law, had, in pursuance of the contract, constructed that a mere failure or refusal of the defendant and equipped their transfer house, and comto pay to plaintiff, or the firm of Richards, menced the weighing and transfer of grain Maynard & Co., any sum of money demanded therein, controversies arose between the parby him or them, and claimed to be on account ties as to the proper construction of the conof services previously rendered by said firm tract, the rights of the plaintiff, and the duunder the contract in question, cannot be con- ties and obligations of the defendant, therestrued or treated as an abandonment of the under. It was claimed by the defendant that said contract by the defendant, entitling the it was not required by the contract to deplaintiff or his said firm to maintain the pres-liver to the plaintiff's firm, to be by them ent action, which is solely for the recovery weighed and transferred, all of the grain reof such profits as might have accrued to the ceived by the defendant from western railplaintiff or his firm, if, on their part, said roads for transportation to the east over its contract had been fully executed, continu- lines, but that it had the option to deliver, ously, for the period limited by said con- to be thus weighed and transferred, only such tract. (16) The jury are further instructed, grain as it chose to deliver, and had the right as a matter of law, that, in order to entitle to divert from plaintiff's transfer house, and the plaintiff to recover in this case, it is neces- was at liberty to transfer and weigh, all or sary for him to establish by a preponder such part of the grain received by it from ance of evidence that he and the firm of Rich- western railroads as it thought proper, by ards, Maynard & Co. were, by the acts of the other modes; and, acting on that interpretadefendant, prevented from the performance tion of the contract, it did in fact withhold of said contract on their part, or that the ex-large amounts of grain from the transfer ecution of the said contract on their part was house, and had the same transferred by other interrupted by, and as the legitimate con- metliods, thereby depriving the plaintiff's

its arrival. Graves v. Legg, 9 Exch. 709, 23 L. J., or rescind, the contract. If he chooses to rescind, Exch. 228.

Effect of providing penalty.

The mere fact that a penalty is provided for a breach of the contract will not prevent a party from rescinding because of breach by the other, on the ground that he could go on and perform his part and then recover the penalty. Wilson v. Roots, 119 Ill. 379.

c. Duty to place other party in statu quo. The rule has been thoroughly established, that before one party can rescind he must place the other in statu quo. Blackburn v. Smith, 2 Exch. 783, 18 L. J. Exch. 187; Beed v. Blandford, 2 Younge & J. 278; Pharr v. Bachelor, 3 Ala. 245; State v. McCauley, 15 Cal. 458; Christy v. Arnold (Ariz.) 36 Pac. Rep. 918: Shively v. Semi-Tropic Land & W. Co. 99 Cal. 259; Cleary v. Folger, 84 Cal. 316; Moore v. Bare, 11 Iowa, 198: Murphy v. Lockwood, 21 Ill. 611; Gebr v. Hagerman, 26 Ill. 441; Wheeler v. Mather, 56 Ill. 241, 8 Am. Rep. 683; Wolf v. Dietzsch, 75 Ill. 205; Colson v. Smith, 9 Ind. 12; Chance v. Clay County Comrs. 5 Blackf. 441, 35 Am. Dec. 131; Hendrickson v. Hendrickson, 51 Iowa, 68; Johnson v. Jackson, 27 Miss. 498, 61 Am. Dec. 522; Randlet v. Herren, 20 N. H. 102; Getchell v. Chase, 37 N. H. 110: Ayer v. Hawkes, 11 N. H. 148; Doughten v. Camden Bldg. & L. Asso. 41 N. J. Eq. 556; Pittsburgh & N. G. Turnp. Road Co. v. Com. 2 Watts, 433.

Thus, a party seeking to recover back money paid for real estate because of failure of title must deliver possession before he can recover, although he has purchased the legal title from a third person. Wright v. Wright, 1 Pa. Dist. R. 204.

Where the vendor cannot give a good title the vendee has one of two remedies, he may enforce,

he must be able to restore the vendor all that he received and place him back in his original situation. Brown v. Witter, 10 Ohio, 142.

To rescind a contract for failure to pay the purchase money there must be a return of whatever bas been received, so as to place the other party in statu quo. Gay v. Alter, 102 U. S. 79, 26 L. ed. 48.

In case of a rescission for mere failure to pay the purchase money, the other party must be put in statu quo by a return of what he has paid under the contract. Frink v. Thomas, 20 Or. 265, 12 L. R. A. 239.

A contract cannot be rescinded by one of the parties for the default of the other, unless both of them can be put in the same state as before the contract. It must be rescinded in toto. And if the party rescinding has received property of any value, however inconsiderable, under the contract, he must restore it to the other party. Coolidge v. Brigham, 1 Met. 547.

In case of failure to deliver what was bought, before the contract can be rescinded the buyer must return what he received, so as to place the seller in statu quo. Conner v. Henderson, 15 Mass. 319, 8 Am. Dec. 103.

There is no right to maintain an action for money had and received after a receipt of part of the consideration which cannot be returned, although the other party refuses to go on with the contract and deliver the remainder of the property. Peters v. Gooch, 4 Blackf. 515.

A contract cannot be rescinded without mutual consent when circumstances have been so altered by part execution that the parties cannot be put in statu quo. Bellows v. Cheek, 20 Ark. 438.

In order to justify a rescission both parties must be put in statu quo, as, where the agreement was

firm of a considerable portion of the business the appellant had given away to western railto which they were entitled by the terms of roads the weights of 12,357 cars transferred the contract. And also that soon after the and weighed by plaintiffs, in violation of the transfer house was open, and during all the contract. It was also found that many other time it was in operation, the defendant cars had been transferred and weighed by claimed the right under the contract, and other methods than through the transfer house adopted and persisted in the practice, of of plaintiffs; that 1,267 of such cars were using the weights obtained from the plain transferred on track by appellant in January, tiff's firm for other purposes than that of bill- February, and March, 1885, alone, in violaing the property weighed to its destination,- tion of the contract. That bill was filed on that is to say, by giving away such weights June 5, 1886, and asked, among other things, to the western railroads over which the prop-a reformation of the contract. The court, by erty had been brought to Chicago, thus its final decree, refused to reform the conplacing it out of the power of plaintiff's firm tract, but held it to be valid and binding beto make sales of such weights to western rail-tween the parties, in the form in which it was roads and others, and thereby depriving the executed. There can be no question that on firm of practically the only source of profit June 5, 1886, and prior thereto, the evidence secured to them by the contract. It will also tended to show that the defendant was then appear that the evidence tends to show that guilty of breaches of the contract, as it was other differences arose as to the amount to be then held to be subsisting and binding bepaid by the defendant on account of the ex- tween the parties. Aside from the large pense of transferring through the transfer amount of business diverted by appellant house, and as to the basis upon which the cost from the transfer house of the plaintiffs, thereof should be computed, etc. The con- which it was bound to furnish them under the struction placed upon this contract in respect contract, as there construed, of the 24, 700 car of the matters of difference before mentioned, loads of grain and seed which appellant by this court, in Lake Shore & M. S. R. Co. v. delivered to and permitted to be weighed Richards, 126 Ill. 448, relieves us of the ne- and transferred through the transfer house, cessity of again construing it. We there held the weights of 12,357 cars, or 50 per cent of the that both the giving away of weights to the entire business done, was given away by the western railroads, and the refusal of appel- defendant, in violation of its covenants. lant company to deliver to plaintiffs' firm, for weighing and transfer, all grain received by it for transportation from western railroads, were violations of its contract. It was there found that the market value of the weights was 70 cents per car, and that

We need not pursue this branch of the case farther. But to these may be added other breaches of the contract by the defendant, which the evidence tends to show, namely, its refusal to pay the transfer charges or expenses, and its refusai to be bound by the

to make repairs and execute a lease in consider- | some benefit from the partial performance of a ation of the payment of the rent, the tenant can-contract cannot rescind it entirely and resort to an not, after taking and holding possession for ten days, rescind for failure to make the repairs, since his possession prevents his placing the other party in statu quo. Hunt v. Silk, 5 East, 449, 2 Smith, 15.

action for money bad and received for money which he may bave paid upon it; and the reason is that by rescinding after such partial benefit to one party both parties cannot be placed in the same situation in which they stood before the contract. But if the other party is placed in the same situation which he occupied before the contract was

special contract and sue for what he paid out under it. Barber v. Lyon, 8 Blackf. 215.

Party cannot rescind while retaining benefit. As part of the rule requiring the placing of the other party in statu quo, it is held that a party can-made, then the dissatisfied one may rescind the not rescind and at the same time retain a benefit under the contract. This rule is just and will equitably settle most cases to which the rule as to condition precedent has been applied. Lord Mansfield's rule in Boone v. Eyre, 1 H. Bl. 273, note, that if the covenant goes to the whole consideration it is a condition precedent, but if it goes only to part of the consideration it is not, is difficult to understand and apply, while practically the same result is obtained by the simple rule that one cannot rescind and also retain a benefit. Therefore the rule as to condition precedent has not been generally applied in modern cases, while the other rule has been.

A person cannot rescind a contract and at the same time retain the consideration, in whole or in part, which he has received under it. Jennings v. Gage, 13 Ill. 610, 56 Am. Dec. 476.

If a party has received a substantial part of the consideration he cannot rescind. Carter v. Scargill, L. R. 10 Q. B. 561, 32 L. T. N. S. 694.

A party who has had some benefit from the contract cannot, as against one who has contributed labor under it for a year or more, rescind it for the latter's breach, but the remedy is an action for damages for nonfulfilment. Rogers v. Garland, 8 Mackey, 24.

It is in general true that a party who has derived

One who has undertaken to deliver a portion of the ore taken from a mine to another, who is to construct a level to drain the mine, is not absolved from his covenant by the fact that the level is permitted to get out of repair, if he is not at all prejudiced thereby, the level remaining sufficient for all practical purposes. Crawford v. Witherbee, 77 Wis. 419, 9 L. R. A. 561.

Payment cannot be avoided while the property is retained. Gale v. Nixon, 6 Cow. 445.

Where one person was to furnish wool, attend to sales, and pay over a portion of the advance money to the other, who was to manufacture cloth from the wool, the court held that after the contract had been partly executed the conversion of a part of the cloth by the manufacturer to his own use would not give the other party a right to repudiate the contract and refuse to pay over the required portion of the advance payments, since the other party could not be put in statu quo. Hammond v. Buckmaster, 22 Vt. 375.

One who has conveyed property to his surety to be disposed of in satisfaction of the surety's liability cannot, after the surety has been engaged in the work for several weeks, rescind the contract so as to revest title in himself, at least not without

placing the surety in statu quo. Allen v. Edgerton, | part without either paying or doing anything for 3 Vt. 442. it. Therefore the law obliges him to perform the Although the lessor of a slave takes him out of agreement on his part, and leaves him to his remthe possession of the lessee before the lease has ex-edy to recover any damages he may have sustained pired, the lessee cannot refuse to pay for him if he in not receiving the whole consideration. regains possession of him in trover and enjoys the benefit of the contract to the end of the term. Odom v. Bryan, 8 Jones, L. 211.