1 Ohio 358 | Ohio | 1824
Dissenting Opinion
dissenting opinion:
In stating the reasons that have induced me to dissent from the opinion expressed by the court in this case, I shall confine myself to the second reason filed for a new trial, viz: that the testimony does not support an action for money had and received. The ease appears to be this. Ronck, being the owner of certain lots in the town of Washington, mortgaged them to Barr, and afterward sold them to the defendants, who agreed to satisfy the mortgage. The defendants afterward sold one of the lots to the plaintiff for one hundred and twenty-five dollars, who, by the agreement, was to pay the purchase money to Ronck, and receive from him a deed, the defendants promising to discharge the mortgage. The plaintiff paid the purchase money, and received his deed, according to contract. The defendants did not satisfy the mortgage, as they were bound to do, in consequence of which the lot was sold on a judgment obtained on the mortgage, and purchased in by one ■of the defendants for the benefit of the plaintiff, who was required.
In Power v. Wells, cited in the last case, the defendant had warranted a horse sound, which proved to be unsound. The plaintiff having tendered a return of the horse, which was refused, brought an action for money had and received, to recover back twenty guineas paid on the contract, and it was held by the court that the action would not lie. The distinction seems to be clearly settled that when the contract has been disaffirmed, and the property restored, assumpsit will lie to recover back the money paid, but where the contract is open, or the property remains in the hands of the vendee, t.he action must be on the contract itself. In this case there is nothing in the evidence from which an inference can be drawn that the contract was terminated. On the contrary, it appears to be open, and subject to litigation. The plaintiff accepted, and still holds a general warranty deed for the lot, which is an affirmance of the contract. He was put into possession, has occupied and rented it, and the person now in possession is his tenant, holding over. The evidence of the first witness is nothing more than the expression of an opinion, by one of the defendants, that the plaintiff was liable to pay the expense of the sheriff’s deed, and that he had no right to rent the lot till he had done so, or, in other words, that the plaintiff was bound by the bargain to
See note A, at the end of the volume.
Lead Opinion
We are all agreed that there is nothing in the first ground assigned for a new trial. It is well settled in New York and in Kentucky, that where money is paid upon a parol contract for the -sale of land, and the vendor refuses or neglects to execute the contract, the money paid may be recovered back, and this stands upon too plain a principle of justice to be disputed.
Upon the second ground assigned, a majority of the court is of opinion that a new trial ought not to be granted. The defendants contracted to remove the lien of the mortgage from the lot they sold. They did not do so. On the contrary, they possessed themselves of the paramount title derived under the lien they agreed to extinguish, and refused to confirm it to the plaintiff unless he would make a new purchase. For the principle upon which they could demand a dollar for making a new deed, is none other than that having it in their power, they would insist upon a new bargain-Whether this amounted to an abandonment of the first contract was left to the jury, who have found in the affirmative. It is not pretended but that upon a special *count, rightly framed upon the contract, the plaintiff ought to have recovered. Substantial justice has therefore been done, and where that is the case, a new trial ought not to be granted.