
    No. 2889.
    Peeples v. McTeer.
    November Term, 1891.
    
      IF. S. Tillmghast, for appellant.
    
      A. M. Youmans, contra.
    March 9, 1892.
   Opinion by

Mr. Chief Justice McIver,

This was an action to recover damages from defendant for cutting timber on plaintiff’s land. It was conceded that defendant had purchased all the pine timber on this land, but plaintiff contended that defendant had removed his mills, discontinued his clearing, and abandoned his contract. The trial judge (Wallace), after instructing the jury that a contract between two parties implied the meeting of their minds on the terms of such contract, proceeded as follows: “A contract can be destroyed,can be rescinded, in exactly the same way. The very moment the meeting of the minds is completed, and it is understood between the parties that the contract is ended now and forever, it is so ended. It may be done by conduct as well as by words. That is the legal principle. You apply it here. Was it the understanding of the parties, Mr. McTeer and Mr. Peeples, when Mr. McTeer moved away his mill and tore up his tramway, that that contract was ended — was destroyed ? If so, if their minds so met, then that contract is ended. Did Mr. McTeer, in his mind, understand that all his rights under that contract were renounced and abandoned ? If so, they were, and the contract was gone. So soon as there is a mutual meeting of minds, a mutual understanding of a dissolution of a contract, the contract is destroyed and dissolved, and all rights under it fall with it. You are to say from the testimony whether or not Mr. McTeer, when he went away from that place, did intend to renounce all rights under that contract, and Mr. Peeples so understood.”

Verdict was for defendant, and plaintiff appealed.

The court say the only disputed question in the cáse “manifestly was whether the written contract, under which defendant claimed the right to cut the timber, had been abandoned or terminated by the agreement of the parties; and that was a pure question of fact, which the jury were explicitly instructed that they were to determine from the testimony as to the acts as well as the declarations of the parties. From the connection in which the words, ‘It may be done by conduct as well as by words,’ were used, the jury could not fail to undersand that an agreement to abandon or terminate a contract might be evidenced by acts as well as by words.” Judgment affirmed.  