
    THOMAS H. BRUMLEY v. M. F. MILLER ET AL.
    Knoxville,
    September Term, 1877.
    1. RESCISSION. Of contract for purchase of land where main inducement fails.
    A contract for the purchase of a tract of land with a mill on it, where the mill is the main inducement to the purchase, will he rescinded at the instance of the purchaser, where the vendor agreed to make certain changes and to: put the mill in a certain good condition ready to be delivered by a fixed day, but failed 1o do so, and offered to deliver the mill to the purchaser in nearly a worthless condition, which was materially injurious to the purchaser. [On rescission, see notes 106, 114, 117, 119 under sec. 3142 of the Code.]
    2. SAME. Same. Conditional acceptance, no estoppel to relief by rescission.
    Where, in such ease, the mill was delivered to the purchaser, but it was not considered as finally accepted by him, as the vendor had additional work to do on the race to complete his agreement, which he continued to do for some time, the purchaser will not be estopped to seek relief by a rescission of the contract.
    3. EVIDENCE. Parol admissible to prove independent agreement collateral to written contract, when.
    Where the contract of sale of land is evidenced by a title bond which does not contain the terms of the. collateral contract by which the vendor undertakes to do- certain work on the mill, and to put it in a certain good condition by a fixed day, this collateral contract may be proven by parol testimony. The rule excluding parol evidence does not apply to a case where only a part of the contract was in writing, nor does it exclude proof of an independent collateral contract with reference to the same subject-matter, where the statute of frauds does not require such contract to be in writing. [See Hines v. Willcox, 12 Pickle, 148, and the cases there cited and reviewed; Lewis v. Turnley, 13 Pickle, 197; Lyons v. Stills, 13 Pickle, 514.]
    Cited with approval: Leinau v. Smart, 11 Hum., 309, 310.
    Ii. PI. IngersoH and O. B. Wilson, fop complainant; Pet-tibone & Bobinson, for defendants.
   FreeMah, J.,

delivered tbe opinion of tbe court;

This bill is filed to rescind a contract for purchase of a tract of land, with a mill on .it, tbe mill being evidently one of tbe main inducements to tbe purchase.

We need not go into the large mass of testimony in tbe case, but only state our conclusions.

It is most satisfactorily shown that tbe vendors were to remove all incumbrance from the mill. It is equally well proven that both parties understood this, at tbe time, to mean that tbe water was to be drawn off from Carson’s land, which was above tbe mill, and that certain changes would have to be made in order to effect this, and that tbe vendors were to make these changes, and tbe mill was to be delivered 1st of May, after tbe trade in February before, competent to do as good work as before. This is not only shown by testimony of witnesses, but is conclusively evidenced by tbe fact that, after tbe trade, defendants proceeded to do what was agreed, and did work worth from one hundred to one hundred and fifty dollars in carrying out their agreement.

It is further shewn that, although the mill seems to have been delivered to Brumley, yet it was not considered as finally accepted by him, the defendants having additional work to do on the race to complete their agreement, and that' they continued to work on it until some time in August.

It further appears, by a considerable preponderance of proof, that the mill is almost, if not a complete failure, and nearly worthless, after all that has been done, greatly to the detriment of complainant.

This being the case., there is nothing in the position of counsel, that the title bond does not contain the terms of the contract between the parties. It is well settled that the rule excluding parol evidence does not apply to a case where only a part of the contract was in writing, nor does it exclude proof of an independent collateral contract with reference to the same subject-matter. See Leinau v. Smart, 11 Hum., 309, 310, and authorities cited. This contract, and its result, as agreed on, being a most material consideration for the purchase of the land — and its failure being materially injurious to the complainant, entitles him to rescind the contract on the ground of failure of consideration. or in a proper case, to an abatement to the extent of the injury.

In this case, rescission is the proper relief, as t-he question of damages would be somewhat complicated, while the other is simple, and restores the parties each to his own. A decree will he drawn, rescinding the contract, with an account for rents, against Brumley, he being allowed for any permanent improvements put on the land, so far as it may be enhanced in value thereby. The case may be remanded to take this account, or taken hea?e¡, if desired. Costs of this court paid by defendant, Solomon Miller; the costs of court below as adjudged by chancellor.  