In the trial of this case, when it was before this court at the October term, 1913, it was decided that "the sale of a building, which the parties intend shall at once be torn down and removed, or removed as a whole, is a sale of personal property and not `of real estate or any interest' therein, within the meaning of that expression in the statute of frauds (§ 1089); and that therefore a contract of that nature may be proved by oral evidence." Wetkopsky v. NewHaven Gas Light Co., 88 Conn. 1, 90 A. 30. At the present trial, in the court below, the principal contention arose as to the terms of the contract which had been made between the parties. The plaintiff claimed *Page 290 that he bought the house without any restrictions or limitations as to the manner in which it was to be removed from the defendant's lot. The defendant denied these allegations and this claim, and in its answer averred that the agreement which was made was for the sale of the materials of the house, with the right to tear it down and carry them away; that these provisions in the contract, under the peculiar circumstances of the case, were material elements of the agreement. It was also alleged in the answer that the plaintiff, by his statements and conduct, repudiated the contract which the defendant had made with him, under such conditions that the defendant was warranted in rescinding the contract. This it did after tendering back the consideration paid. The plaintiff replied denying these averments. The defendant asked the court to instruct the jury that if they should find that by the terms of the contract which was made the plaintiff was to tear down the house and carry away the materials, as averred and claimed by the defendant, and that the plaintiff, after making such a contract, announced to the defendant that he would not carry it out as made but would remove the house as a whole, the defendant had a right, under these circumstances, to treat the contract as at an end. These requests were ignored.
In view of the issues raised by the defendant's answer and the evidence which was offered tending to support these claims, it was error to refuse this request. It was for the jury to determine, under suitable instructions, whether the plaintiff had repudiated the contract under such circumstances as to justify the defendant in rescinding it. The Sales Act (Public Acts of 1907, Chap. 212, § 65) provides that "where the goods have not been delivered to the buyer and the buyer has repudiated the contract to sell or sale, or has manifested *Page 291 his inability to perform his obligations thereunder, or has committed a material breach thereof, the seller may totally rescind the contract or the sale by giving notice of his election so to do to the buyer." A vendor is not bound to await the expiration of the period in which the contract was to be performed when the other party has definitely and unqualifiedly repudiated it. Under such circumstances the vendor may elect to accept such repudiation as an anticipatory breach by rescinding the agreement. Churchill Grain Seed Co. v. Newton, 88 Conn. 130, 133, 134,89 A. 1121; Home Pattern Co. v. Mertz Co., 86 Conn. 494, 501,86 A. 19.
Instead of adopting the defendant's requests, the court said to the jury: "In view of the evidence that has come in, I think you will agree with me — if you don't you must take my word for it, in view of my duties to you — that there was a contract made for the sale of that house on that date, and that whatever contract was made, the Gas Company by its removal of the house on Saturday morning following the making of the contract, rendered it impossible for the plaintiff to make any use whatever of that house; and in view of that, I direct you that your verdict must be for the plaintiff. The important question is what damages is the plaintiff entitled to recover, and that is the only thing that you need consider; what damages is the plaintiff to recover."
This was improper. It was for the jury, under proper instructions, to determine what contract had been made between the parties, and whether or not it reached the standard required by law to prove the defendant's contention, that a contract had been made which was repudiated by the plaintiff under such circumstances that the defendant was entitled to rescind it. O'Neil v. East Windsor, 63 Conn. 150, 153, 154, *Page 292 27 A. 237; Kebbe v. Connecticut Co., 85 Conn. 641-644,84 A. 329.
The averments of the defendant's answer, that it made a contract with the plaintiff which was repudiated under such circumstances that the defendant was justified in rescinding the agreement, stated a good defense. At least it appears that it was so treated by the parties in the trial of the case. Its sufficiency was not questioned by motion or otherwise. The plaintiff denied these averments and the case was tried upon the merits of this proposition. The record discloses that the defendant offered substantial evidence tending to prove, and that it claimed to have proven, its contention upon this subject. The evidence of the parties was conflicting. It was the duty of the trial court to have submitted this part of the case to the jury, under such instructions as were correct in law, adapted to this question, and sufficient for the guidance of the jury. This was not done. Cook v. Morris, 66 Conn. 196,203, 204, 205, 33 A. 994; Elie v. Cowles Co.,82 Conn. 236, 239, 73 A. 258; Girard v. GrosvenordaleCo., 83 Conn. 20, 25, 74 A. 1126.
There are other exceptions to the charge as given, to the refusal of the court to charge as requested, and to certain rulings made upon evidence; but in view of what we have already stated it is unnecessary to give these objections further consideration.
There are also several exceptions to the refusal of the trial court to find certain matters which the appellant claims that it offered evidence tending to prove. The finding, if corrected as the defendant desires, would not strengthen its appeal; and therefore the motion to correct is denied.
There is error and a new trial is ordered.
In this opinion the other judges concurred.