Page:Harvard Law Review Volume 1.djvu/163

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parties. Held—A was entitled as damages to the profits he would have made had B not prevented the performance of the contract, less the profit actually made by the sales to other parties. A was not bound to make the rails as per contract with B, sell them in open market, and charge B with the difference between the amount realized and that contracted for. Hinckley v. Pittsburgh Bessemer Steel Co., Limited, 7 Sup. Ct. Rptr. 875.

ContractConsideration.—A agreed with B to do certain blasting and excavating of rock at a stipulated price, but finding that the rock was not as soft as represented by B, he threatened to abandon the contract on the ground of misrepresentation. B, in order to induce him to continue, promised to pay an additional compensation. A then completed the work. It was held that A was entitled to recover the additional consideration. When A completed the work he was doing that which, on account of B’s misrepresentation, he was not bound to do. Hence there was a consideration for B’s promise to pay the additional sum. Parker v. Glover, 9 Atl. Rep. 217 (N.J.).

ContractFailure of Plaintiff to Perform fullyLiability of Defendant in Implied Contract.—A contracted with B to build a church. When the building was completed it was found not to comply exactly with the specifications. But B occupied the building. B objected to the deviations as soon as they were discovered. A sues B on a count for work and materials furnished. To alter the church so as to comply with the contract would cost much more than the alteration would be worth. Held—That the plaintiff was entitled to recover the contract price less the diminution in value of the building by reason of the deviations. The decision goes on natural equity and recent authorities. Pinches v. Swedish Evangelical Lutheran Church, 10 Atl. Rep. 264.

ContractMistakeFailure of Consideration.—Under a contract for the sale of land, a deposit was made with a condition for forfeiture on failure to complete the contract. The vendee accepted the title, but was unable to obtain the remainder of the purchase-money at the time agreed on. The vendor, in accordance with the conditions, forfeited the deposit, and afterwards re-sold the property. Three years later, the first vendee heard that the title was found bad on this re-sale. He accordingly brought an action to recover the deposit on the ground of mutual mistake and total failure of consideration. The Court held that this would be taking advantage of his own wrong. Soper v. Arnold, 35 Ch. D. 384.

ContractRescissionMutual Mistake.—A bought a cow of B for $80 both believing her to be barren. If she had been a breeder she would have been worth $750. The sale was complete, title had passed, and an order had been given for delivery. But before actual delivery B discovered that the cow was with calf, and refused to deliver because of the mistake. Held—That B could rescind the sale. “A barren cow is substantially a different creature than a breeding one. She is not in fact the animal, or kind of animal, the defendant intended to sell or the plaintiff to buy.” Sherwood v. Walker, 33 N. W. Rep. 919 (Mich.).

ContractRight of a Third Party to Sue.—A contracted with B to “drive” B’s logs a certain distance down the river. By the terms of the contract B was to furnish A the money to pay off A’s men. Held—A’s men had no rights under the contract, as it was not made for their express benefit. Wright v. Terry, 2 So. Rep. 6 (Fla). The case is valuable for the editor’s note, which collects many late cases.

DeedBuilding Restriction.—A stipulation in a deed providing that land shall be used for residence purposes only, will not be enforced after the plan of confining building in that neighborhood to residences has been abandoned, and adjoining land sold without restrictions. “A contract, the fulfilment of which becomes unreasonable, will not be enforced at the instance of a party who by his own conduct has produced such a result. After treating it as void he cannot appeal to a court of equity to treat it otherwise.” Duncan v. Central Passenger R.R. Co., 4 S.W. Rep. 228 (Ky.).

EvidenceDying Declaration.—The declarant, when so far gone that he could neither feel a pencil placed in his hand nor see a light held before his eyes, was asked if he thought he would ever get well. He answered, “I don’t know; I don’t think I will ever get well; the doctor don’t tell me much.”

Held—The question and answer would be sufficient to show that declarant had no hope of recovery; but considering the surrounding circumstances, and the