
    Becker v. Philadelphia.
    , The plaintiff was a contractor for building two sewers for the city of Philadelphia. The contract provided that “ the rock from the necessary excavation ^hall become the property of the contractor, excepting such part as may be necessary for the support and protection of the work and embankment and filling.” When the work of .the construction of the sewer was about half-done and' the plaintiff had been paid part on account, he stopped work, claiming a right to a rescission of the contract, because a private owner, through whose property a portion of the sewer was-made, would not allow him to sell and remove -the stone taken from that portion of the excavation; and brought suit against the city on a quantum meruit. The court below entered a compulsory nonsuit, Held, not to be error.
    Per Curiam. — It was only the surplus stone that became the property of the contractor. The stone necessary for the support and protection of the work and embankment and filling was expressly excepted, and, until the-culverts were ■completed, it could not be ascertained how much of the stone would be needed- for the necessary work of the sewers. ,,
    
      Query, whether the plaintiff, under his contract with the city, was entitled to sell the stone taleen oiit pf private property, the contract providing that should the sewer run through private premises, the city will pay the compensation for right of way, but no other damages.”
    
      Jan. 31, 1889.
    Error, No. 82, Jan. T. 1889, to C. P. No. 4, Phila. Co., to review a judgment of compulsory nonsuit in an action of trespass on tbe case by Henry J. Becker against tbe city of Philadelphia, at June T. 1887, No. 67.
    The plaintiff filed the following statement of claim, Aug. 30, 1887:
    “ Henry J. Becker brings this suit against the city of Philadelphia to recover a balance of $29,888.75 due him for work and labor and materials furnished by him in the construction of two acqueducts or sewers at the Falls of Schuylkill for the said defendant at its request.
    “ The work was done under two contracts; one of them dated April 6, 1886, a true copy of. which is annexed, and made part of this statement; and the other of them, dated Sept. 20, 1886, a true copy whereof is annexed, and also made part of this statement.
    “ In and by the said two contracts, the defendant agreed to pay the plaintiff certain sums of money per lineal foot for said work by monthly installments upon the certificates of the chief surveyor and it was also provided and agreed that, in addition to the said money consideration, the plaintiff should have the materials, rock, etc., which came out of the said excavations, whereby the defendant did warrant and agree with plaintiff that they had a good title and right to convey said material to the plaintiff, whereas in facts and in law they had no title or right to convey said material, ro6k, etc., which they well knew, but did fraudulently mislead and deceive the plaintiff therein, whereby the said two contracts became null and void.
    “And the plaintiff further says that, though he did faithfully perform and keep his part of said two contracts, the defendant did not permit him to have and take the material, rock, etc., which came out of the said excavations, but with force of arms prevented him from so doing; neither did the defendant pay to the plaintiff the said monthly assessments as made and provided by said agreements but refused so to do, though often requested, and in many other respects the defendant did violate, ignore and refuse to carry out the said two agreements whereby the same became and were revoked by the plaintiff, of which the defendant had notice.
    “And the plaintiff therefore sues for the value of his work and materials furnished in and about the construction of the said two sewers and attaches hereto a bill of particulars thereof.”
    The pleas were non assumpsit, payment, with leave.
    In addition to the terms of the contract as stated above, there was the following provision : “ Should the sewer run through private premises, the city of Philadelphia will pay the compensation for right of way, but no other damages.” The first contract provided that the sewer should be finished not later than Dec. 1, 1886. The other contract called for the completion of the other sewer within five months from notice to begin work. The payments were to be made in monthly installments.
    On the trial, the plaintiff proved that the owner of private property through whose laud the culvert ran refused to allow the plaintiff to sell and remove the stone.
    It also appeared from the evidence that the plaintiff notified the Director of Public Works, on May 7, 1887, insisting on having some arrangement made if he was to go on with the work. The director replied the same day that he would hold the plaintiff to the terms of the contract. The plaintiff quit work May 11, and, on May 18, notified the director that the contracts were rescinded. The warrant for the month of April, which was due about May 1, was not paid.
    The court entered a compulsory nonsuit, in the following opinion:
    “ There are some features in the case which are not free from difficulty. In my judgment, the action as brought, for the amount expended in material, and for work and labor done, cannot be sustained. The contract was one providing for payment per foot for the construction of the sewers, and, in my judgment, the only remedy which the plaintiff can have, particularly in view of the fact that large payments were made upon account, and that, upon rescission of the contract, the parties could not be put in statu quo, is an action for breach of contract.”
    The court subsequently refused to take off the nonsuit, in an opinion by Willson, J., reported in 45 Leg. Int. 35.
    
      The assignments of error specified the action of the court, 1, in entering a nonsuit; and, 2, in refusing to grant a rule for a new trial and set aside the nonsuit.
    
      Lewis Stover, for plaintiff in error.
    It may be that the officer who represented the city when the contract was made, as well as the contractor, supposed the right of eminent domain carried the right to sell the material which came out of the trench. This was a mistake. Palairet’s Ap., 67 Pa. 479. When the mistake was brought home to the defendants, justice required them to do all. they could to remedy their own blunder. When they covenanted to rive him the rock they warranted their title to it. Eagan v. Call, 34 Pa. 237; Redgrave v. Hurd, L. R. 20 Ch. D. 1.
    This is such a fraud upon the plaintiff as would have justified rescission at common law. Selway v. Fogg, 5 M. W. 86; Shippen v. Bowen, 122 U. S. 582; Redgrave v. Hurd, L. R. 20 Ch. Div. 1.
    Where there is a mutual mistake, the remedy is by substitution ; where uni-lateral, by rescission only. Paget v. Marshall, L. R. 28 Ch. Div. 255.
    Where one contractor refuses to perform an essential part of his contract, the other'may rescind and sue in assumpsit. Addison on Cont. 54; Moorhead v. Fry, 24 Pa. 39; Hall v. Rupley, 10 Pa. 231; Drhew v. Altoona, 22 W. N. C. 229; Philadelphia v. Bickley, 18 W. N. C. 53.
    Compulsory nonsuit is a demurrer to evidence. The court must assume the truth of plaintiff’s evidence and every reasonable inference in his favor. Jones v. Bland, 116 Pa. 190.
    
      Where one party has refused to perforin, or rendered himself incapable to perform, the other may rescind. De Bernardy v. Harding, 8 Ex. 822.
    
      Robt. Alexander, Ass’t City Solicitor, with him Chas. F. Warwick, City Solicitor.
    The right to abandon a contract rests only on the. party who has been guilty of no default. 2 Ohitty on Contracts, 1092; Moorhead v. Fry, 21 Pa. 89.
    ■ The plaintiff' could not, as a contractor, when the sewer was a little more than half built, determine how many stone would be needed to comply with specifications, before the sewer was complete. McGrann v. North Lebanon R. R., 29 Pa. 92.
    A contract cannot be rescinded in toto by one of the parties where both of them cannot be placed in the identical situation which they occupied when the contract was made. 2 Ohitty on Contracts, 1092.
    Feb. 11, 1889.
   Per Curiam,

The plaintiff was a contractor for building two sewers for the City of Philadelphia. The larger •■sewer ran through a part of Fail-mount Park, and for about one thousand feet through private property. One of the specifications provided that the rock from the necessary excavation shall become the property of the'contractor, excepting such part as may be necessary for the support and protection of the work and embankment and filling.” The gross amount which the city was to pay under the two contracts when completed was $58,000. When the work was about half done and the plaintiff had been paid on account the sum of $23,000, he stopped work and brought suit against the city for $29,888.75 in addition. He claims the right to rescind both contracts, and his suit is upon the basis of a rescission. Tlié principal ground upon which lie claims to rescind is that the private owner, through whose property a portion of the culvert was made, would not allow him to sell and remove the stone taken from that portion of the excavation. It is by no means clear that, under his •contract with the city, the plaintiff was entitled to sell the stone taken out of private property. The contract stipulates that should the sewer run through private premises, the city of Philadelphia will pay the compensation for right of way, but no other damages.” The city, and likewise its contractor, would have the right to use -the material taken from private property for the construction of the sewer, but neither the city nor the contractor had the 'right to •sell any portion of it, and this was as well known to the one party .as the other, when the contract was made. It seems irrational to hold that it could have been in the contemplation of the parties to have contracted for a thing that was not within the control of ■either party, and so known to both of them. Conceding, however, ■that the plaintiff was entitled to the stone as against the city, he had no right to sell it during the running of the contract. He had not the right to sell even the stone taken from the property of the city until his contract was completed, for the reason that it was only the surplus stone that became the property of the contractor. The stone necessary for the support and protection of the work and embankment and filling was expressly excepted, and, until the culverts were completed, it could not be ascertained how much of the stone would be needed for the necessary work of the sewers. It might all be required. We see no ground upon which this contractor can rescind his contract with the city, and, having failed to perform it, he was properly nonsuited.

Judgment affirmed.  