Graham v. Holloway

Citations

• 44 Ill. 385

Syllabus

<p>1. Rescission of contbacts—by the acts of the parties. As a general rule, a breach of contract by one party absolves the other from, a performance of its terms and conditions. When such breach occurs, the other party is at liberty to rescind the agreement.</p> <p>2. Same—as to the mode of rescission. The party having the right to rescind may manifest his intention to do so in a variety of modes; one of which is by suing, and recovering damages sustained by the breach.</p> <p>3. Same — effect of rescission. And where a party elects to rescind by suing and recovering for a breach of the contract, he cannot afterward insist upon the performance of any of its conditions, unless the contract should be renewed.</p> <p>4. Same—renewal after rescission. The contract may he renewed after such a rescission, either by an express agreement of the parties, or by acts which show an intention to give it new force and effect.</p> <p>5. Same—relations of the pa/rties after such renewal. But if a contract should be thus revived after having been rescinded by the recovery of a judgment for a breach of its conditions, the party who had rescinded cannot enjoy the fruits of his judgment and also insist upon the performance of the contract, — he cannot hold the two-fold and antagonistic position of a party to the contract, entitled to have its provisions executed, and a judgment creditor, whose rights as such are based upon a rescission of that contract.</p> <p>6. So where a purchaser of land from one who held under a contract of purchase, having paid his purchase money, sued and recovered a judgment against his vendor for the money paid and interest, as damages for non-compliance of such vendor with his contract to convey, the recovery of such judgment operated as a rescission of the contract; and upon the original vendor filing his bill to subject the land to his lien for unpaid purchase money due from his vendee, such second purchaser who had recovered the judgment, filed his cross-