Page:North Dakota Reports (vol. 2).pdf/326

 Daniel J. Davis and Thomas Rankin, Co-Partners as Davis & Rankin, Plaintiffs and Respondents, v. Emma C. Bronson and Lorenzo N. Bronson, Co-Partners as E. C. & L. N. Bronson, Defendants; Lorenzo N. Bronson, Defendant and Appellant.

Rescission of Contract—Action for Breach.

Defendant having refused to perform a contract for the erection of a creamery by plaintiffs before they had entered upon the performance thereof, held, that an action to recover the contract price would not lie, although plaintiffs had, notwithstanding defendant’s refusal to perform, completed the creamery according to contract. Plaintiffs had no right to go on with the contract under such circumstances, and recover the contract price; their only remedy being for damages for breach of the contract.

APPEAL from district court, La Moure county; Hon. W. S. Lauder, Judge.

George W. Newton, for appellant. Moer & Harris, for respondents.

Action to recover upon a contract of subscription to the capital stock in a creamery company. Judgment for plaintiffs. Defendant appeals. Reversed.

George W. Newton, for appellant:

It was predjudicial error to admit secondary evidence of the contract. Anglo-American Packing Co. v. Connor, 31 Fed. Rep. 313; Post v. School District, 26 N. W. Rep. 911; Nelson v. Central Land Co., 29 N. W. Rep. 121; In re Assignment of Gazett, 29 N. W. Rep. 347; Sebree v. Dorr, 9 Wheat. 555; Myers v. Bealer, 46 N. W. Rep. 479. It was error for the court to refuse to submit the question of damages to the jury and to rule that the measure of damages was the subscription with legal interest from the time the creamery was completed. Danforth v. Walker, 37 Vt. 239; Derby v. Johnson, 21 Vt. 17; Nye v. Tagyart, 40 Vt. 205; Clark v. Marsiglia, 1 Denio 317; Spencer v. Halstead, 1 Denio 606; Dillon y. Anderson, 43 N. Y. 237; Moline Scale Co. v. Beed, 3 N. W. Rep. 96.