
    Francis v. Warren and Another.
    
      Saturday, June 25.
    APPEAL from the Montgomery Court of Common Pleas. '
   Per Cwriam.

The complaint alleges that Warren and Burk, on the 24th of August, 1857, put into the hands of Francis, who was the defendant, 400 dollars, to buy hogs for them, at 5 dollars per hundred weight gross, if they could be had at that price, and if not, the defendant was to refund the money; that at the time he received the money, he executed a receipt, which was filed with the complaint, and reads thus:

August 24,1857. Received of Levin Warren and Robert Bwk 400 dollars, for to buy hogs with, at 5 dollars gross, if I can get them; if not, I refund the money. Elias Francis.”

It is averred that the defendant never furnished or delivered to the plaintiffs any hogs, in performance of his undertaking, but excused himself from such performance by asserting that he could not buy hogs at the price stipulated, and on the 29th of September, 1857, refunded 245 dollars, 50 cents, of said 400 dollars, leaving a balance of 154 dollars, 50 cents, which he refuses to refund, &c.

Defendant, in his answer, says “he bought 145 dollars, 50 cents’ worth of hogs for the plaintiffs, and had them ready to deliver, on his farm in Montgomery county, on the 29th of September, 1857, at 5 dollars per hundred weight gross, in part performance of said contract, and still has them on said farm, ready to be delivered to the plaintiffs, and he offered so to deliver them on that day; but the plaintiffs refused to receive them; and, further, that the plaintiffs and defendant then and there, in consideration of the refunding of the balance of said 400 dollars, as alleged in the complaint, rescinded the contract so far as he was bound thereby to purchase the residue of said hogs—he, the defendant, having executed and performed that part of the contract which was not rescinded by agreement of the parties, by purchasing the hogs, now on his farm, for the plaintiffs.”

Demurrer to the answer sustained, and final judgment for the plaintiffs.

This defense is inaccurate in point of form; but as we understand it, the defendant, on the 29th of September, 1857, refunded 245 dollars, 50 cents, to the plaintiffs, and that the parties then, in consideration of such refunding, rescinded the contract for the delivery of the hogs as to that amount; that for the residue of the 400 dollars by them advanced, he had bought 154 dollars, 50 cents’ worth of hogs, which were then on his farm in Montgomery county, and which he then offered to deliver to the plaintiffs, in full execution of that part of the contract not rescinded; but that they refused to receive them, and he still has them ready on his farm, &e. This, it seems to us, was a valid defense. The parties had a perfect right to change or modify their contract in respect to the purchase and delivery of the hogs; and we think they have, in this instance, done so, upon a consideration which the law deems sufficient, viz., the refunding of the 245 dollars, 50 cents. The demurrer should have been overruled.

I. Naylor, for the appellant.

The judgment is reversed with costs. Cause remanded, &c.  