I concur so far as a reversal is concerned. The complaint stated a cause of action for breach of contract. At the trial, *Page 737 the defendant demanded that plaintiff elect between two inconsistent actions, one for breach of the contract, the other based upon rescission. The whole case was submitted to the jury upon the theory of the breach of the contract. Plaintiff, to excuse his default and recover for a breach, offered, and the court admitted, evidence of excuse which the opinion correctly holds was inadmissible, and gave instructions properly held to be erroneous.
The respondent insists in this court, by his brief, that his action was for a breach of contract, saying:
"More than this there was no uncertainty in respondent's complaint as to the nature of his demand. It plainly shows in express terms that respondent sought to recover for damages for a breach of a contract and not to recover money paid on the theory that there had been a rescission which he accepted."
One who sues upon contract in effect refuses to acquiesce in a rescission, but sues rather for the breach.
"Whether a verdict will operate to confirm a rescission, will depend, at least to some extent, on the form of the action and the pleadings. A purchaser, therefore, should not sue on the warranty if he desires the contract to be regarded as rescinded, but should bring some action which treats the contract of sale as void." (Carter Harden v. Walker, 2 Rich. (S.C.) 40.)
". . . . It is recognized as the settled law, thatassumpsit for money had and received, will not lie until the contract has been rescinded." Id.
The evidence having disclosed plaintiff's own breach of the contract, he seems ready to accept the other theory, and to say that if he is not permitted to recover for the breach, he must be permitted to sustain the verdict as one upon rescission. The opinion correctly refuses so to sustain it. Having decided that this was not an action for rescission, but for breach of contract, it becomes unnecessary to discuss an action for rescission, or the right to, or the measure of damages in, such a case. *Page 738
The judgment should be reversed with instructions to enter judgment dismissing the action.
I am authorized to state that Mr. Justice Wm. E. Lee concurs in this opinion.
Petition for rehearing denied.