Blewett v. McRae, 88 Wis. 280

Blewett v. McRae

88 Wis. 280 | Wis. | 1894

Cassoday, J.

The aggregate amount of the payments due on the purchase of the four lots from Stowe on and *284prior to March 19, 1891, was $2,000. The plaintiff sent to the defendants the $1,000 mentioned as his half of such payments, and to that extent canceled and discharged his “ obligations ” to Stowe and the defendants on the contract mentioned, and it was so applied by the defendants. Beyond question that payment gave the plaintiff an equitable interest in the land which he might have enforced had he made the other payments as he had agreed. By the terms of the contract, a failure to pay the second payment when due operated as a forfeiture of the payment previously made, and time was made therein the essence of the contract. The plaintiff is not here seeking to enforce the contract which he made, nor to enforce or obtain any interest in the land, nor to reach any share of the proceeds for which the land was sold, but to recover back the money he so paid upon the contract, which he was unable further to perform and therefore refused to perform. Inability and refusal to perform is certainly no ground for rescinding a contract by the party so in default.

The only other ground upon which a rescission is sought is that the defendants were to receive a commission of five per cent, on the sale from Stowe, and concealed that fact from the plaintiff. The plaintiff knew that the lots belonged to Stowe, and that the defendants were his agents in making the sale of them. Tie testified that one of the defendants informed him that they were to have no commissions. If that was true, then the services of the defendants were gratuitous — preposterous as that may seem to be. At the time the contract was made it was expected that Anderson would take a half interest in the lots, and the defendants were only to take the same in case Anffer-son failed, as he did. No fraud was practiced upon the plaintiff, and the case is clearly distinguishable from Grant v. Hardy, 33 Wis. 668, relied upon by counsel. In that Gase Ilardy, by collusion with the vendor, and false pre*285tenses practiced upon Grant, induced the latter to pay the entire purchase price and yet secure to Hardy the title to one fourth of the property without any payment from him. In the case at bar the plaintiff neither paid nor agreed to pay any commission, and hence the question of double commission is not involved.

As indicated, the action is purely one for money had and received. Such an action can only be maintained in a case where the defendant has received money which in equity and good conscience he ought to pay to the plaintiff. Woodward v. Hill, 6 Wis. 148; Lawton v. Howe, 14 Wis. 246; Fay v. Lovejoy, 20 Wis. 406; Wells v. Am. Exp. Co. 49 Wis. 229. This is not such a case. Had the defendants wrongfully refused to allow the plaintiff to share in the benefits of the contract, a different question would have been presented. Colt v. Clapp, 127 Mass. 476.

The facts in the record do not bring the case within the statute of frauds. Whitman v. Lake, 32 Wis. 189.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.