LAKE SHORE & MICHIGAN SOUTHERN RAILWAY COMPANY, Appt.,

0.

Edward S. RICHARDS, Surviving Partner of Richards, Maynard & Company. (152 Ill. 59.)

1. A statute making the judgment of the appellate court conclusive on all questions of fact does not violate the provisions of the Illinois Constitution authorizing appeals and writs of error to the supreme court in all criminal cases and cases in which a franchise

or freehold or the validity of a statute is involved. and "in such other cases as may be provided by law."

2. A motion to direct a verdict for defendant is abandoned by proceeding to introduce evidence to sustain the defense after the motion is overruled, if it is not renewed. 3. A breach of contract which will justify the party not in default in abandoning performance and suing for dam

ages on account of a breach by the other need not be of such a character as to render the further execution of the contract by him impossible, but if the other party refuses to treat it as subsisting and binding upon him, or by his act and conduct shows that he has renounced it and no longer considers himself bound by it, there is in legal effect a prevention of performance by the other party.

4. It can make no difference whether a contract has been partially performed or the time for performance has not yet arrived, in determining the right of one party to regard it as abandoned by the other.

5. Upon election to treat the renunciation of the contract by the other party, whether by declaration or by acts or conduct, as a breach of the contract, the rights of the parties are to be then regarded as culminating; and the contractual relation ceases to exist, except for the purpose of maintaining an action for the recovery of damages.

(June 19, 1894.)

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I. Introduction.

II. Condition precedent.

b. Charter party.

c. Party excused by nonperformance of condition precedent.

d. Excuse for not performing condition precedent. III. Right to rescind contract without liability for nonperformance.

a. Necessity of mutual consent.
b. Contract may be rescinded.

c. Duty to place other party in statu quo.
d. Partial performance.

IV. Party seeking to rescind must not be in default.

V. Right of party rescinding to recover for what he has done.

VI. Right to abandon performance and recover for breach.

VII. What will warrant rescission.

own part." Norrington v. Wright, 5 Fed. Rep. 768. That language presents merely the case of immunity from liability on the part of the one who chooses to regard the contract as rescinded, because the other party is not in a position to enforce

performance by reason of his own default. Such

cases are the most simple and at the same time perhaps the most common in which the right of rescission is exercised. In addition to this class there are several well-marked classes of cases in which the aggrieved party has sought, not only to relieve himself from his contract obligation on account of the other party's default, but has in addition sought to make such default the ground for affirmative relief. Thus, there are cases in which the aggrieved party has sought to recover back what he had delivered under the contract or its value; in which he has sought damages for the breach; and in which he has claimed the right to perform no more on his part but to recover the profits which he would have made had he done so. In the early cases the right to rescind because of

contracts.

a. Vendor and purchaser. b. Constructive contracts.

c. Insurance contracts.

d. Continuing contracts.

I. Introduction.

pend upon whether the covenant of the party seeking to rescind was dependent upon performance of that of the other party or independent of it. The courts held that in case it was independent it must be performed whether that of the other party was or not. There was much curious and