Opinion of the Court.

at all of said land. He further alleged that the wheat mentioned in his complaint or declaration, except an excess thereof over the requirements of said bond, was the purchase price of the land; and that, by reason of defendant's neglect and refusal and inability to perform the said contract, the defendant became and was indebted to plaintiff for the reasonable value of said wheat, and that such demand constituted the cause of action in the complaint pleaded.

In disposing of the contention of the plaintiff in error that the pleadings disclose a departure by the plaintiff below from the cause of action set forth in his complaint, and a resort to a new and different cause of action in his replication, we are, of course, entitled to regard the allegations of fact contained in the complaint and replication as true.

It would, therefore, appear that there was a contract whereby the defendant below was to grant and convey unto the plaintiff certain tracts of land by a good and sufficient deed of conveyance, in consideration whereof the plaintiff was to deliver to the defendant twelve thousand bushels of wheat; that the plaintiff performed his part of the contract by delivering the said wheat, which was received by the defendant; that the plaintiff thereupon demanded of the defendant a conveyance of the land; that defendant neglected and refused to grant and convey said tracts of land by any good or sufficient deed; and that, as to one of the tracts, the defendant had no title to convey.

Upon such a state of facts it seems plain that the plaintiff had a right to treat the contract as at an end, and to bring an action to recover the value of the wheat he had delivered to the defendant, and such other damages as he might have suffered by reason of that failure of the latter to perform his part of the contract; and, a fortiori, that he might waive any demand for consequential damages, and confine his claim to a demand for the value of the wheat. In the latter event he might well assert his claim by a count alleging the delivery and receipt of the wheat, a consequent duty on the defendant to pay its value, and a demand for the same.

Under the ordinary system of pleadings, an action of

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assumpsit would lie to recover back purchase money paid upon a contract of sale which has been rescinded.

Smith expresses the doctrine, in his note to Cutter v. Powell, (2 Leading Cases, 30, 7th American edition,) thus:

"It is an invariably true proposition that whenever one of the parties to a special contract not under seal has, in an unqualified manner, refused to perform his side of the contract, or has disabled himself from performing it by his own. act, the other party has thereupon a right to elect to rescind it, and may, on doing so, immediately sue on a quantum meruit for anything he had done under it previously to the rescission."

The learned author sustains his proposition by citing Withers v. Reynolds, 2 B. & Ad. 882; Planché v. Colburn, 8 Bing. 14; Palmer v. Temple, 9 Ad. & El. 508.

Well-considered American cases are to the same effect. Eames v. Savage, 14 Mass. 425; McCrelish v. Churchman, 4 Rawle, 26; Baston v. Clifford, 68 Illinois, 64; Stahelin v. Soule, 87 Michigan, 124.

It is, however, contended that, under the code of Washington, a different rule prevails, and the case of Distler v. Dabney, 23 N. W. Rep. 335, decided by the Supreme Court of that State, is cited. That decision was made after the trial of the present case, and while the appeal from the Supreme Court of the Territory of Washington was pending in this court; but it is claimed that, under the doctrine of Stutsman County v. Wallace, 142 U. S. 293, when, pending an appeal from a territorial court to the Supreme Court of the United States upon a question of local law, the Territory is admitted as a State, and the Supreme Court of the new State reaches an opposite conclusion upon the same question, the later decision will be followed by the Supreme Court of the United States.

It does, indeed, appear that, in the case of Distler v. Dabney, the Supreme Court of the State of Washington has construed the code of that State as meaning that the plaintiff's complaint must contain his real cause of action, and that he cannot be permitted to meet matter set up in the answer by resorting, in his replication, to a new cause of action inconsist

VOL. CXLVIII-23

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ent with the statement made in the complaint. The facts of that case were not dissimilar to those of the case in hand, and it must be conceded that, if we are bound to adopt the construction put by the Supreme Court of the State on the code. of the State as applicable to the code of the Territory, notwithstanding an opposite view of the Supreme Court of the Territory, it would lead to a reversal of the judgment in this case, unless, indeed, the objection was waived by the subsequent conduct of the defendant.

It would seem to be altogether unreasonable that the judg ments of territorial courts, in mere matters of procedure, should be subject to reversal, because of decisions made by the courts of the State in subsequent cases, while the former cases were pending on appeal in this court. Nor do we understand the case of Stutsman County v. Wallace to so hold. In that case there were involved a substantive right to an estate and a construction of the tax laws of the State and Territory, and it was pointed out, in the reasoning of this court, that our mandate must be issued to the Supreme Court of the State, which, in its turn, directs the state court succeeding to the District Court of the Territory to proceed in conformity to our judg ment; and it would seem to irresistibly follow that, in the enforcement of a law common to the Territory and to the State, this court must, in pursuance of the well-settled rule, adopt the construction put upon the local statute by the highest court of the State.

The distinction between that and the present case is obvious. The question before the territorial courts in the particular we are now considering, involved no substantive right, but a mere matter of orderly procedure in the trial court, and we are satisfied with the ruling of the Supreme Court of the Territory that the District Court did not err in regarding the facts set up in the replication as properly pleaded to the matters alleged in the answer, and as not, in substance, a departure from the complaint.

The course of the District Court at the trial was approved by the Supreme Court of the Territory, and surely cannot now be impugned, because, in a later and different case, arising in

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the courts of the new State, the Supreme Court of the State declares the methods to be followed by the courts of the State. Even if, as a matter of technics, the replication was a departure from the complaint, it is not easy to see how the defendant could have availed himself of such a defect in a court of error. His proper course, if he wished to invoke the rigor of the law, was to raise the question either by a demurrer or by a motion; but his conduct in agreeing to a change of venue, after the pleadings had been perfected, in entering into a stipulation as to the principal facts of the case, and in going to trial upon the issue as made up, ought to preclude him from opening the pleadings at the trial.

These views also dispose of the further objection that the plaintiff did not, in his replication, plead a rescission of the contract. But the reply did allege facts that gave a right to rescind, and the plaintiff's evidence, if true, sustained those allegations. Such a defect, if it were one, would, if demurred to, have been curable by amendment, and cannot operate in a court of error to invalidate the trial below.

Assuming the sufficiency of the pleadings, we are brought to consider the second question in the case, and that is whether, upon the evidence, the plaintiff was entitled to a verdict and judgment. The trial court having thought fit to peremptorily direct the jury to find a verdict for the plaintiff in a stated amount, the defendant is obviously entitled to the benefit of every fact and presumption which might have justly controlled the jury in his favor, or, in other terms, the plaintiff must be able to sustain his judgment as the proper conclusion of the law upon the uncontradicted or admitted facts of the case.

There were three principal matters of contention in the trial court:

1st. Did Ankeny have a good title to the northeast quarter of section 19, being part and parcel of the lands which he agreed to sell to Clark?

2d. Did Ankeny make an efficient tender of a good and sufficient deed of conveyance?

3d. Supposing that Ankeny failed in one or both of these particulars, was Clark disabled from availing himself of such

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failure by having himself failed to pay the mortgage for $3000 upon the land contracted for, and which he had agreed to pay as part of the purchase money; and did he waive tender of a deed?

We shall briefly consider these subjects in their order. And first, as to Ankeny's title to the northeast quarter of section 19. It was conceded, in the stipulation filed, that the main line of the Northern Pacific Railroad Company was completed in the year 1880, on the route and line shown by certain maps of definite location attached to the stipulation, and that after examination and report by commissioners, as provided in the act of Congress, the road was accepted by the President of the United States; that, on May 30, 1881, the Northern Pacific Railroad Company executed and delivered to one Peter Huff a warranty deed for said northeast quarter of section 19; and that, on December 13, 1881, the said Peter Huff, together with his wife, executed and delivered to Ankeny a warranty deed for the said northeast quarter of section 19. Upon this state of facts it was contended by the plaintiff Clark that there was nothing to show that the Northern Pacific Railroad Company had paid into the Treasury of the United States the cost of surveying, selecting and conveying the same, as prescribed by the act of July 15, 1870, nor to show that any patent had been granted to the railroad company, and that hence, within the cases of Railway Company v. Prescott, 16 Wall. 603, Railway Company v. McShane, 22 Wall. 444, and Northern Pacific Railroad v. Traill County, 115 U. S. 600, the Northern Pacific did not have and hold the legal title to the tract in question; and, therefore, that the conveyance by the railroad company to Huff and that by Huff to Ankeny did not operate to vest a good legal title in the latter.

On the part of the defendant Ankeny it was claimed that by force of the original grant to the Northern Pacific Railroad Company, and the filing of its map of definite location, and by reason of the construction and completion of its road, and the acceptance thereof by the President of the United States, there was vested in the railroad company a good legal