Petition for Rehearing.
On petition for rehearing. Denied.
Mr. Oscar Hay ter and Mr. Arthur L. Veazie, for the petition.
Mr. Walter G. Winslow and Messrs. Smith & Shields, contra.
Department 2.
BENNETT, J.Upon the original hearing we tried to give every one of the many specifications of error careful consideration. The appellant, however, has *374filed a petition for a rehearing, accompanied by a very able and ingenious brief, in which it is again strongly urged that a mutual rescission in 1912 was not pleaded or relied upon by the plaintiff, and that there was no sufficient evidence of such rescission, or that a forfeiture during that year was declared by the defendant or accepted by the plaintiff.
19. The allegations of the complaint are not entirely clear or definite, it is true; but there was no motion to make more definite and certain, and the parties went to trial as the pleadings stood. "We find in the complaint the following allegations:
“That thereafter the defendant decided to abandon and repudiate said contract and to deprive the plaintiff of his interest thereunder, and in pursuance thereof, did, during the latter part of the year 1912, repudiate said contract, and, without reason therefor, announced that the same had been canceled and surrendered and that he would no longer be bound thereby, * * and any further attempt or offer of performance of said contract upon plaintiff’s part was waived by the defendant and would have been a vain and useless act. That on account of the defendant’s course of conduct and position as hereinbefore alleged the plaintiff has elected to rescind said contract and to accept the defendant’s repudiation thereof as a mutual rescission and cancellation of said contract.”
It is urged argumentatively that other portions of the pleading indicate that this acceptance must have been at a later date than 1912, but this is not alleged, and in the absence of a motion to make more definite and certain, we think the allegations (if supported by the evidence) were sufficient to sustain a finding that a forfeiture was wrongfully declared by the defendant and accepted by the plaintiff during the year 1912. It is true the plaintiff does not claim in his complaint *375to have given np the possession of the property until February, 1913; but it does not necessarily follow that the contract had not been canceled before that date.
20. This brings us again to the consideration of whether or not the evidence could support such a finding; for, if it could, upon any reasonable hypothesis, such a finding upon the part of the jury must be assumed, in order to support its verdict, under the well-settled rules of law as to the verdict of a jury.
21. The very able brief on rehearing has not satisfied us that the evidence of the defendant himself, was not sufficient to sustain a verdict against him, both as to the forfeiture of the contract by him in 1912, and as to the acceptance of the same by plaintiff. It will be remembered that the defendant testified on direct examination that in October, 1912, plaintiff came into his office and gave him the contract, and he put it in the stove, and on cross-examination he testified:
“Q. "When did you declare that forfeiture?
“A. When he gave me that contract.
‘ ‘ Q. Then and there ?
“A. Forfeited right then and there * * The contract was forfeited. 1 told him it was and all ended. I didn’t suppose any thing would be thought about it and throwed it in the stove. * * I notified him at different times I wanted him to move off the place and he told me he was going to as soon as he could rent a place.”
It seems plain that this was some evidence that the defendant declared the contract forfeited at this time and refused to proceed further, and that the plaintiff assented to that refusal. It is true the defendant also testified in this connection, that plaintiff at the same time agreed to a forfeiture of hjs payments. The plaintiff, when called in rebuttal, specifically denied that he *376had agreed to a forfeiture, but made no direct denial that the defendant had declared the contract ended. As was said in the original opinion,
“The jury had a right to believe either of the witnesses or to believe part of the testimony of each one of the witnesses and disbelieve the remainder of their testimony, if they thought it was unreasonable.”
This principle seems so well settled that it can hardly admit of doubt.
It is urged that it is improbable that the defendant would have agreed to a termination of the contract, without an understanding of forfeiture; but this is an argument which would go to the jury, rather than the court. However much we might be impressed with the reasoning of the learned attorneys for the defendant, in that regard, we could not make it a reason for interfering with the finding of the jury. It will be noticed that the defendant in the first instance did not say that there was any talk of forfeiture.
“Q. Now what, if anything, was said there in reference to returning or repaying to Comely any amount paid on the contract or any consideration for his property in Marion County?
“A. Nothing said about that — nothing.”
Then, when pressed further by his counsel, he persisted that there was nothing said, but stated his conclusion, that the contract was forfeited.
“Q. Not what you think or thought but what the agreement was in reference to terminating the contract at that time.
“A. Nothing was said about that whatever. He simply forfeited the contract at that time.”
And, when he was admonished by the court that he could not state a conclusion, and was still further pressed by his attorney, he testified:
“He said he would forfeit the contract.”
*377Under sncli conditions it is far from onr province to say whether all, or any, or what part of bis evidence should have been credited by the jury. It is possible that the jury may have been influenced in the case by a supposed injustice, if the defendant was permitted to take back all he had transferred, and at the same time retain the farm he had received from the plaintiff; but we cannot assume that this was so, and in the absence of some showing of bias or prejudice, we are bound to accept its finding as long as there is any evidence to support it, without regard to whether or not we would have reached the same conclusion.
22. It is urged in the brief for rehearing that the opinion does not follow -the contention outlined in the brief for respondent. As we read the brief of respondent, he contends for an alternative position. One of the paragraphs of the statement in the brief is as follows:
“The contract being still in .force, Campbell wrongfully renounced all liability under it, claiming that it had been canceled by mutual consent in 1912, and on account of his repudiation of the contract, Comely elected to rescind the same thereby rendering the rescission mutual. ’ ’
At any rate, it can make no difference, for we are governed by fixed principles of law, and not by the mere contentions of the parties.
23. It is urged that the repudiation of the contract by the defendant, to work a rescission, must be absolute, and that it cannot in any view of the evidence be so construed in this case. But we think it is sufficient if the words or conduct of the defendant indicated an intention to be no longer bound.
*378In 13 C. J., page 615, it is said :
“In determining whether there has been a repudiation of a contract by one of the parties, so as to warrant the other in rescinding, the test is whether the acts and conduct of the party evince an intention to no longer be bound.”
In McAllister v. Matthews, 167 Ala. 364 (52 South. 417, 140 Am. St. Rep. 43), it is said:
“One party may so wrongfully repudiate the contract as to authorize the other to renounce it and refuse to be longer bound thereby. This- happens when the acts and conduct of one of the parties evinces an intention to no longer be bound by the contract. ’ ’
The testimony of defendant.that he declared the contract “all ended,” and that he burned it up, and after-wards insisted upon the plaintiff removing from the premises, was entirely sufficient to carry the case to the jury in this regard.
The rehearing is denied.
Modified. Rehearing Denied.
McBride, C. J., and Bean and Johns, JJ., concur.