Ady v. Jenkins

Briscoe, J., delivered the opinion of the Court, This is an application by a bill in equity for an injunction and for the specific performance of a contract for the sale of a pack of canned corn for the season of. 1917 known as “Hyde’s Egyptian Corn.” The injunction was granted, and the defendant was decreed to specifically perform the contract and to deliver the corn, according to the contract. From this decree the defendant has taken an appeal. The contract between the parties is in writing and is evidenced by the following letter: “Hyde P. O., Md., 3/29/1917. Sami.

J. Ady, Esq., Sharon, Md. Confirming my telephone conversation of last night regarding your offer of March 21st that you will pack for me all your packing of this season, 1917, except 1,000 cases for your own requirement. The price to me is 1.30 per dozen f. o. b. Sharon, shipment to be made as soon as ready. Labels to be in your place or shipped by Aug. 1st.

Payment to be made in 10 days & Bill of Lading furnished with each shipment with usual discount for cash. Kindly acknowledge this by return mail. The maximum amount of your pack for my brand not to exceed 5,000 cases. Yours truly, Frank B. Jenkins.” This letter was mailed to and received by the defendant, and it is admitted that the contract was accepted by him. ³⁸ The defense of the appellant rests on two grounds—first, that the failure of the appellee to deliver or ship the labels by the 1st of August was a sufficient reason for him to rescind the contract; and, second, that the appellant did not use the seed corn stated in the bill.

On the other hand, while it is admitted that the labels were not shipped to the appellant by the 1st of August, 1917, it is contended that this failure to deliver was not such a breach of the contract, under the facts of the case, as to give the appellant a right to rescind the contract. The law is well settled that when there has been a substantial breach of a contract the other party has a right to rescind the contract or to- refuse to perform his part, and sue for damages. Koch v. Wimbrow, 111 Md. 22 ; Anvil Mining Co. v. Humble, 153 U. S. 540 . In Brantly on Contracts, page 415, it is said: “It is not, however, every breach of contract, or failure exactly to perform, which justifies a rescission.

If the promise which is broken is subsidiary—that is, one which does not go to the root of the matter, defeating the object of the contract, and where the breach can well be compensated by damages—the other party can not rescind for this reason.” In 6 R. C. L., pages 925 and 926, under title “Contracts,” the rules of law upon this subject and the authorities in support thereof, are collected and stated at length. In section 311 it is said it is not every partial failure to comply with the terms of a contract by one party which will entitle the other party to abandon the contract at once. Tor partial derelictions and nonperformance in matters not necessarily of first importance to the accomplishment of the object of the contract the party injured must seek his remedy upon the stipulations of the contract itself. Before partial failure of performance of one party will give the other the right of rescission, the act failed to be performed must go to the root of the contract, or the failure to perform the contract must be in respect to matters which would render the performance ³⁹ of the rest a thing different in substance from that which was contracted for.

A breach of but one of the subsidiary provisions or promises of a contract will not. as. a rule, relieve the other party from such further performance as may be due from him under the contract and he is left to his remedy by an action for compensation in damages. Brantly on Contracts, 415, 439, 300, 403; 6 R. C. L., secs. 312, 313, pages 927 and 928. While as a general rule, in mercantile contracts, stipulations as to time, are regarded as essential we cannot hold, under the facts of this case, that the failure of the plaintiff to deliver the labels by the first of August, was such a breach of the contract, as to justify the defendant in rescinding and abandoning the contract. An examination of the. evidence will show that time could not