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cures her husband to convey certain property to her, under threats not to live with him unless he does so, and on obtaining the conveyance lives with him for only a few days, and then, without any apparent cause, deserts him and severs their marital relations, the conveyance will be set aside at the suit of the husband.23 It is said, however, in some cases, that it is only when the consideration is fully executed that it can fail so as to enable the party receiving it to avoid his executory undertaking founded thereon.24 And hence the failure to keep promises made to induce the making of a contract will not sustain a suit to set the contract aside.25

§ 159. Partial Failure of Consideration.-In several of the states, it is expressly provided by statute that a party to a contract may rescind the same when the consideration for his obligation fails in whole or in part.26 Aside from enactments of this kind, the general rule appears to be that a partial failure of consideration will justify the rescission or cancellation of an obligation in equity if the contract is entire and the consideration therefore not apportionable.27 Thus, where a person exchanged his land for three land warrants and a certain amount of money, but two of the warrants proved to be invalid and the locations thereunder were canceled, it was held that he was entitled to a rescission of the contract on tendering a return of the warrants and the money received.28 So, where land is ex

23 Hursen v. Hursen, 212 Ill. 377, 72 N. E. 391, 103 Am. St. Rep. 230. An almost exactly similar case in Minnesota was decided the other way. But it was apparently because the husband sought to cancel his conveyance on the ground of fraud (rather than of failure of consideration), and did not allege or show any material fact evidencing a fraudulent intent on the part of the wife at the time of the transfer. Hodsden v. Hodsden, 69 Minn. 486, 72 N. W. 562. 24 Crawford v. Beard, 4 J. J. Marsh. (Ky.) 187.

25 Van Sickle v. Harmeyer, 172 Ill. App. 218.

26 Civ. Code Cal., § 1689; Rev. Civ. Code Mont., § 5063; Rev. Civ. Code N. Dak., § 5378; Rev. Civ. Code S. Dak., § 1283; Rev. Laws Okl. 1910, § 984. And see Sterling v. Gregory, 149 Cal. 117, 85 Pac. 305; Conlin v. Osborn, 161 Cal. 659, 120 Pac. 755.

27 Williams v. Butler, 58 Ind. App. 47, 105 N. E. 387, 107 N. E. 300; Parham v. Randolph, 4 How. (Miss.) 435, 35 Am. Dec. 403; Case v. Fishback, 10 B. Mon. (Ky.) 40.

28 Colson v. Smith, 9 Ind. 8.

changed for chattels, failure to deliver a part of the chattels designated and agreed on is a partial failure of consideration which will warrant rescission.20 And where a purchaser of land is evicted from one-third of the property, he may have the sale canceled in toto and be relieved from payment of the price. And in an action on a note given for certificates to whisky in a government warehouse, which were delivered when the note was given, a defense setting up an agreement of the plaintiff to loan defendant certain money as a part consideration of the note, and a refusal of plaintiff to carry out the contract, entitles the defendant to rescind it. Again, where a vendor sold, without any reservation, certain premises on which were fixtures placed there by a tenant, and the tenant, before the execution of the deed, removed the fixtures, it was held that the purchaser was not liable at law for refusal to perform the contract.82

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But some of the authorities maintain that a failure of consideration must be entire, in order to warrant the rescission of a contract, unless there are circumstances of fraud in the case or some other ground of equitable jurisdiction, and that a partial failure of consideration will not be enough for this purpose, if the resultant injury is capable of being compensated in some other way or of being redressed by an action at law. Thus where one sold land together with an apartment house then in process of construction on the premises, giving a deed and taking a mortgage for the unpaid portion of the purchase money, and undertook to complete the building by a certain date, at which time the last installment of the price was to be paid, it was held that his omission to put fire escapes on

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29 Johnson v. Ryan, 62 Wash. 60, 112 Pac. 1114.

30 McCollom v. McCollom, 6 Rob. (La.) 506.

81 Julius Kessler & Co. v. Parelius, 107 Minn. 224, 119 N. W. 1069, 131 Am. St. Rep. 459.

32 Smyth v. Sturges, 108 N. Y. 495, 15 N. E. 544.

33 Stephenson v. Atlas Coal Co., 147 Ala. 432, 41 South. 301; Kauffman Milling Co. v. Stuckey, 37 S. C. 7, 16 S. E. 192; Hewett v. Dole, 69 Wash. 163, 124 Pac. 374.

34 Yard v. Patton, 13 Pa. 278; Becker v. City of Philadelphia, 5 Pa. Co. Ct. R. 97.

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the building was a mere partial failure of consideration, which would not justify a court of equity in annulling the contract so far as executed and cancelling the conveyance and mortgage, the remedy of the purchaser being the liability of the vendor in damages for his failure to perform his undertaking to complete the building. Again, the contract may be of such a kind that, if it is undone, the parties cannot be restored to their former situation. Thus, where a man deeded land to a woman in consideration of marriage and of her promise to be a kind and dutiful wife, but she failed so to conduct herself, it was held that the failure of consideration was partial, and that equity would not decree rescission, since the wife could not be put in statu quo.3

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In any event, the consideration alleged to have failed must be the particular consideration for the particular contract in question, and not some extraneous or collateral matter. For instance, the vendor of land cannot repudiate or resist performance of his agreement to convey by showing that the purchaser is indebted to him upon an account, which was not connected with the contract of sale in its inception nor made a part of it by any subsequent arrangement. And equity will not cancel a sale on the ground of partial failure of consideration, where the party complaining had an opportunity to examine, test, or appraise the consideration before completing the contract, and the other party was guilty of no fraud.38 So, where a contract for the sale of land requires the vendor to furnish an abstract of title, and he gives the vendee notice where such abstract may be found and inspected, and the vendee makes no objection to the failure otherwise to furnish the abstract, he cannot afterwards rescind the contract for failure to furnish it.89

35 De Kay v. Bliss, 120 N. Y. 91, 24 N. E. 300.

se Jackson v. Jackson, 222 Ill. 46, 78 N. E. 19, 6 L. R. A. (N. S.) 785.

37 Byrd v. Odem, 9 Ala. 755.

38 Vincent v. Berry, 46 Iowa, 571. And see Pope v. Chafee, 14 Rich. Eq. (S. C.) 69.

39 Papin v. Goodrich, 103 Ill. 86.

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§ 160. Failure of Consideration from Impossibility of Performance.-Impossibility of performance of a contract may be ground for its rescission, when occurring without fault and by a fortuitous event, as where the subject-matter of the contract perishes or is lost or destroyed, though different rules apply where a party to the contract, by his own act, has disabled himself from performing his obligation. These principles will be more fully discussed in a later chapter. At present we are concerned with the doctrine that there is such a failure of consideration as will warrant rescission when it is impossible for the party undertaking to render the consideration to keep his obligation in this respect. This happens, for instance, where the supposed subject of the contract does not exist. In this event there is no legal obligation and either party may treat the contract as void. This rule has been applied, for instance, in cases where the agreement was based on a supposed judgment, which did not exist,42 and where the agreement was with respect to the payment of certain taxes on a piece of property, which taxes never had been assessed against it, or were not collectible by law. Again, as to the executory features of a contract with reference to specific property, the obligations assumed clearly contemplating its continued existence, the destruction of the property, without fault, will constitute such a failure of consideration as to discharge the contract.** But in the case of an executed contract, the failure of consideration must have existed at or before the completion of the agreement. It is not sufficient that there is a subsequent destruction, failure, or decadence of the consideration. Thus, in a case in California, defendant contracted to convey to plaintiff certain land and certain shares in an irrigation company, which entitled him to a certain amount of water. The plaintiff paid part of the price, took possession, and im

40 See, infra, Chapter VIII, §§ 208-211.

41 Smith v. Gorin, 2 Duv. (Ky.) 157.

42 Gibson v. Pelkie, 37 Mich. 380.

43 State v. Illyes, 87 Ind. 405.

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44 Steamboat Co. v. Transportation Co., 166 N. C. 582, 82 S. E. 956; Powell v. Dayton, S. & G. R. R. Co., 12 Or. 488, 8 Pac. 544.

proved the land. The irrigation ditches were fed by artesian wells, which, at the time the contract was made, and for five years thereafter, furnished as much water as had been represented, but partially failed the following season. It was held that such failure of the wells did not authorize a rescission of the contract, since, if there was a failure of this part of the consideration, the failure was through no fault of the defendant.45 So, in Louisiana, a statute provides that if the subject of a sale has perished by a fortuitous event before the purchaser has instituted an action to rescind, he must bear the loss; and it was held that the death of a slave from a fever contracted after he had been sold was a fortuitous event within the meaning of the law. 46

Impossibility of performance may also arise from the entire unsuitability of the subject to its intended use. This is illustrated by a case in which the plaintiff had been drafted to serve in the army in time of war, and agreed to pay another $300 to serve as his substitute, and upon his being accepted by the district provost marshal, paid him $50 and deposited the balance with a third person. But the substitute was rejected by the revisory board on account of age and infirmities, and it was held that the plaintiff was thereupon entitled to recover the $250 from the depository.47

Where the subject of sale is land with the buildings on it, and the buildings are destroyed by fire, the question of rescission as for a failure of consideration appears to depend on the transfer of possession. If the purchaser had been placed in possession before the fire occurred, or even if he was then entitled to immediate possession or to the immediate delivery of a deed, it is held that he must bear the loss and cannot rescind or withdraw from his engagement to purchase. But if there has been no delivery of

45 Owen v. Pomona Land & Water Co., 131 Cal. 530, 63 Pac. 850, 64 Pac. 253.

46 Kiper v. Nuttall, 1 Rob. (La.) 46.

47 Bibb v. Hunter, 2 Duv. (Ky.) 494.

48 McKechnie v. Sterling, 48 Barb. (N. Y.) 330; Harmony v. Bingham, 12 N. Y. 99, 62 Am. Dec. 142; Dowdy v. McLellan, 52 Ga. 408;

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