I am unable to agree with my brother Smith, in his views of the law applicable to this case. To hold the defendants’ excuse, for not delivering the engine in question, according to their agreement, a valid one, would, as it seems to me, introduce a novel and dangerous element, into the law of contracts for the sale and delivery of property. The defendants had undertaken, for a valuable consideration, to manufacture this engine and to sell and deliver it to the plaintiff, at a reduced price, to be paid for by him in a particular manner. They manufactured it, but refused to deliver it, when demanded by the plaintiff. The only ground of refusal was, that in case they delivered it, the plaintiff contemplated putting it in operation upon certain premises in the state of Pennsylvania, which he had then purchased for that purpose, and for which he had given judgment notes, upon which judgments had been entered and became liens upon the land. The effect of this, as the defendants alleged and offered to prove, according to the laws of that state, would be to give the judgment creditor a lien upon the engine, when thus placed upon the premises, superior to their title. Assuming that the plaintiff would have no right under the agreement, after the property was delivered to him by the defendants, to dispose of it, or place it in any situation by which the defendants would be deprived of their title, which by the agreement they were to retain, it by no means follows that the defend*215ants would for that reason be justified in their refusal to perform.
Each party to a contract is bound to perform, according to its terms, and the true intent and meaning of its provisions; and the remedy of each, for a refusal to perform by the other, is, by action upon such contract, to recover damages. Had the plaintiff, after the performance by the defendants, been guilty of any breach on his part, they would have had their remedy by action against him upon the contract, to recover all the damages they had sustained by reason of such breach. They do not place their refusal to perform, upon any ground of fraud. or insolvency on the part of the plaintiff. There is no such element in this case, and no pretense that the plaintiff is not abundantly able to respond in damages for any breach of the agreement, on his part. Their justification is placed simply and solely upon the apprehension, or expectation on their part, or if you please, upon a well grounded assurance, that if they performed, the plaintiff might not perform on his part, but, on the contrary, would do something which he had no right, according to the intent and meaning of the contract, to do, with the property. Will this justify the refusal by a party to perform his agreement ? If it will, I yet have to learn that such is the law. Fraud, as we all understand, vitiates all contracts, and absolves the innocent party from all obligation to perform on his part, if he elects to rescind upon that ground. But here is no fraud, and no insolvency, alleged or proved; and how the defendants can possibly be allowed to refuse performance under such circumstances, without giving the other party a right of action, is more than I am able to understand. Was it ever before heard, that one party to a contract would be justified in refusing to perform it, simply because the other party might break it afterwards ? I think not. The defendants do not pretend that the plaintiff had broken the contract, on his part. What they pretend is that he contemplated breaking it after performance by them. • And this must be held equivalent to an actual breach, or a fraud, by the plain*216tiff, before the defendants can be justified in refusing to perform. The defendants here did not even rescind the contract, nor attempt to do so. Indeed it is plain there is no ground upon which they could have rescinded, had they offered it. But they did not; they kept what they had received, and refused to pay what they agreed to pay for it, and the plaintiff is to be held remediless. The plaintiff had fully performed the agreement on his part, except paying for the engine, which he was not to pay for presently. That was a purchase upon a long credit, and part of the price was obviously paid in the transfer by the plaintiff of his interest in the partnership property. The case was evidently tried upon the assumption that the plaintiff had transferred all his interest in the partnership property, in part performance of the agreement on his part. The fact is expressly alleged in the defendants’ answer. In cases of fraud, even where there has been part performance, the law will not allow the innocent party to rescind and avoid the contract, without restoring what he has received under it, and placing the other party in statu quo. But here the defendants are allowed to refuse performance with impunity, without rescission or restoration. It is suggested in the.prevailing opinion, that if the question whether the defendants ought to have delivered the engine, had been submitted to the jury, they might have rendered a different verdict. But' as the question is one of law strictly, it would have been clearly erroneous to submit it to a jury.
The only doubt I have had in regard to the case, was in respect to the measure of damages adopted at the circuit, in allowing the defendants to recover the value of the shingle machine. It is evident, I think, on the whole case, that what the defendants promised to pay the plaintiff, for his interest in the partnership property, was the amount of the reduced price of the engine, and the shingle machine; and by allowing him to recover these two items, he was only recovering back, of the defendants, what he had paid them in the transfer of his partnership interest. By the terms of the contract the de*217fendants were to give the plaintiff a shingle machine in good condition for business. It seems from the evidence that at the time the pontract was entered into, the. defendants had such a machine, at Lockhaven, where the plaintiff proposed to put up and operate the engine, ánd that it was understood between the parties, that the plaintiff might take it there. The plaintiff never did take it, but left it where it was when the contract was made. He might have taken it, and the reason he assigns for not taking it is, that he expected to run it, with the engine which the defendants agreed to deliver, and they having refused to deliver the engine, according to their agreement, he was without any motive power to operate the machine in the manner contemplated by the agreement, and declined accepting it unless he could have the engine also. It is clear, I think, that the title to the shingle machine did not vest in the plaintiff by the agreement. And inasmuch as he never reduced it to his actual possession, it never became his property. When the defendants, therefore, refused to deliver the engine, according to the agreement, the plaintiff had the right to treat the whole of the contract, not actually performed by them, as broken, and to decline taking this machine. The defendants elearly could derive no advantage, by tendering the shingle machine} and at the same time refusing to deliver the engine. They should either perform, or offer to perform, the whole contract ‘ and are not permitted to say that the plaintiff was offered, and might have taken, part, notwithstanding their refusal to perform the other part. If the title to the shingle machine never actually vested in the plaintiff, and the contract has been broken by the defendants, its value is the subject of recovery as part of the damages. The other items were, I think, clearly correct. I am therefore of the opinion that the judgment should be affirmed.
[Monroe General Term, December 5, 1859.New trial granted.
T. R. Strong, Smith, and Johnson, Justices.]