The only question presented upon this appeal is whether it was necessary to make Weir a party defendant, or whether the facts alleged in the complaint as an excuse for omitting him were sufficient for that purpose, and whether there was proof which would warrant the jury in finding these facts. In the consideration of these questions the two contracts made at the same time and in the same matter must be construed together. ( Babbitt v. Gibbs, 150 N.Y. 281.) The rule which requires parties jointly liable upon a contract to be joined as defendants in an action for the breach of it cannot be questioned, but where it is necessary to determine in any case whether a person is a necessary party defendant, the question to be decided is whether that party has at the beginning of the action any interest in the matter, or whether the relations between himself and the other defendants are such that his presence is necessary to protect their rights.
To rescind a contract or indemnity bond, the minds of the parties must meet in agreement or mutual release fully settling all rights thereunder. It is not determined by the termination of the contract on which it is based. Reliance L. I. Co. v. Garth, 192 Ala. 91, 68 So. 871; McAllister-Coman Co. v. Matthews, 167 Ala. 361, 52 So. 416, 140 Am. St. Rep. 43; Clark Co. v. Nelson, 216 Ala. 199, 112 So. 819, 53 A.L.R. 173; 13 C.J. 624; Babbitt v. Gibbs, 150 N.Y. 281, 44 N.E. 952; Dickey v. Vaughn, 198 Ala. 283, 73 So. 507; Wellden v. Witt, 145 Ala. 605, 40 So. 126. A party cannot hold onto such part of a contract as may be desirable and avoid the residue. Stephenson v. Allison, 123 Ala. 439, 26 So. 290; Kelly v. Louisville N. R. Co., 154 Ala. 573, 45 So. 906. Where there is a conflict in the evidence upon any material point or issue, or different inferences may be drawn therefrom, the general affirmative charge cannot be given. It cannot be given where there is any evidence or reasonable inference tending to establish the theory against which the charge would conclude.
This rule, however, is not without exceptions; and where performance depends on the continued existence of a given person or thing, and such continued existence was assumed as the basis of the agreement, the death of the person or the destruction of the thing puts an end to the obligation. (596) Lorillard v. Clyde. supra: Babbitt v. Gibbs, 150 N.Y., 281-286, 44 N.E. 952; Herter v. Mullen, 159 N.Y. 28, 44; 53 N.E. 700, 44 L.R.A., 703 60 Am. St., 517; Matter of Daly, 58 A.D. 49, 68 N.Y. Suppl., 596. In such cases the courts have implied a condition in the contract that a party is relieved from its terms when its performance has, without his fault, become impossible.
Upon an appeal to the General Term in this department the judgment was affirmed (76 Hun, 613), but upon an appeal to the Court of Appeals the judgment was reversed and a new trial granted. ( 150 N.Y. 281.) Subsequently, and in pur suance of a suggestion of the Court of Appeals, the plaintiff obtained leave to change his prayer for relief from a demand for specific performance to a demand for money damages, and an amended complaint was served. The answer to the amended complaint was verified by the attorney for the defendant, and, like the original answer verified by the defendant personally, it contained no denial of the completion of the road.
As a general rule the unqualified undertaking of a party to perform an act is not to be excused because the situation existing when the contract was made did not continue to exist at the time stipulated for performance. Labaree Co. v. Crossman, 100 A.D. 501; Lorillard v. Clyde, 142 N.Y. 456. This rule, however, is not without exceptions; and, where performance depends on the continued existence of a given person or thing and such continued existence was assumed as the basis of the agreement, the death of the person or the destruction of the thing puts an end to the obligation. Lorillard v. Clyde, supra; Babbitt v. Gibbs, 150 N.Y. 281-286; Herter v. Mullen, 159 id. 28, 44; Matter of Daly, 58 A.D. 40. In such cases, the courts have implied a condition in the contract that a party is relieved from its terms when its performance has without his fault become impossible.