Evans v. Hoppock

*324 By the Court,

Ia our opinion the respondent fails to show such a breach of the contract on the part of the appellants as to entitle him to the relief demanded. He proceeds upon the idea that there has been such a failure to perform on their part that he can rescind and recover back the amount paid on the contract. He claims that his purchase gave him the right to the possession of the premises, but that he has never been in the actual possession of the property. The following is the material allegation of the complaint upon this point: “ The 'plaintiff further shows to the court, that at the time of the execution of said contract, one John Powles was in the actual possession of said premises, and that this plaintiff then requested said Powles to give him possession of said premises, which said Powles refused to do ; that within a few weeks thereafter, and while the said Powles continued in actual possession of said premises, the said defendants, without the knowledge or consent of this plaintiff, executed and delivered to said Powles a lease of said premises for the term of two or three years, and thereby violated their said contract -with this plaintiff.” Now whether the respondent would be entitled to a rescission of the contract upon establishing these facts by competent evidence, is a question which we slnht.ll not consider. Eor, assuming that he gives in his testimony the correct account of the arrangement made in respect to the possession, it is very apparent that Powles continued in possession with the respondent’s consent. Eor he says that on the day of the sale, while .going home, upon his telling Powles that the quicker he moved out the better it would be, Powles said he would give him possession in nine days if he did not buy tbe mill back, and that he waited until the nine days were up, and then Powles wanted a longer time. This, with other portions of his testimony, shows most conclusively that Powles continued in possession with his knowledge and consent. The respondent waited from the 3d of November until the following March for Powles to buy back the *325property, permitted, him to retain possession, and told him in March that he would not wait longer than April on any account. In view of these statements of the respondent it is utterly impossible to say that Powles did not retain possession with his fall knowledge and consent. He permitted Powles to continue in possession not only for the period of nine days but for four months. Powles then must be considered to be in possession under him, according to an arrangement which he himself made, and there is no ground for saying there has been any breach of the contract made with the appellants in respect to the possession of the property, or upon any other point. It is true, the attorneys of the appellants, on the 19th of March, 1861, gave.Powles, in the name of their clients, a written leave to hold possession of the property until the following November, with the privilege of renewal for a year. It is unnecessary to dwell upon the circumstances or reasons for giving this lease. The attorneys in giving it, however, acted most unquestionably in entire good faith, and according to their understanding of the arrangement entered into between the respondent and Powles at the time the written contract was executed. But suppose they were mistaken about the terms of this ar. rangement in respect to the possession, and that the respondent gives the true history of the transaction, as we have assumed above, then it is evident the lease was simply void. No rent was reserved in it, and the right to terminate it at will was expressly reserved likewise, and it was in fact ended, and all rights under it (if any) were revoked at the instance of the respondent. But we suppose the giving of the lease was a void act in the light we have been considering the case; the right to the possession of the premises being in the respondent, and he having actually controlled the possession in the manner detailed by him in his evidence.

The j udgment of the circuit court is reversed, and a new trial ordered.