76 W. Va. 799 | W. Va. | 1915
In the case of Griffith v. Cook, 74 W. Va. 452, 82 S. E. 256, Cook, by pleading and relying on the statute of frauds, defeated Griffith, in an action against him for the balance of purchase money claimed as due from Cook, for an interest in six several tracts of land sold him.
In the present suit Cook sued Griffith in assumpsit to recover back the amount of purchase money paid Griffith, as he claims, in full for an interest in one of said tracts, and which Griffith had refused to convey him, but as Griffith contends, in part payment for an interest in all six of said tracts, and which he was then and had been able, ready and willing to convey him on payment of the balance of purchase money due him therefor.
On the trial below, on the defendant’s plea of non assumpsit, and two special interrogatories submitted to the jury on plaintiff’s motion, to be answered and returned with their verdict, the jury found for the defendant, and the interrogatories and their answers thereto were as follows: “Question 1. -Did Cook agree to take an interest in any lands other than the C. C, Moomaw tract?” Answer, “Yes”. “Question 2. Was the contract for an interest in all the tracts of land as claimed by John R. Griffith?” Answer, “Yes”.
By the judgment complained of, the court, on motion of plaintiff to set aside the verdict, and, non obstante veredicto, enter judgment in his favor, and of defendant to enter judgment on the verdict in his favor, adjudged, that the motion of defendant be overruled, that the verdict for defendant be set aside; and notwithstanding the verdict, the court finding independently of the jury, that there was due and owing from defendant to plaintiff the sum of sixteen hundred and ninety dollars and seventy seven cents, it was thereupon considered and ordered that plaintiff recover of defendant said sum with interest from date with the costs of the suit.
This action of the court on these motions was evidently based on the theory that the defense interposed by Griffith was bad and immaterial, and that in view of the judgment against him in Griffith v. Cook, supra, no other or valid defense could be interposed by him. Mason v. Harper’s Ferry
As the jury on the interrogatories submitted found against plaintiff on the question whether his contract was for an interest in one of said tracts only, or for an interest in all six of said tracts, binding him, the single and decisive question now presented for decision is, can a vendee in a parol contract for the sale and purchase of land, recover hack money voluntarily paid by him to the vendor, when the latter is able and stands ready and willing, on payment of the balance of purchase money, to execute the contract on his part, by making, executing and delivering to the vendee a good and sufficient deed for the property? Quite a long line of decisions answer this question in the negative. Coughlin v. Knowles, 7 Met. 57, 39 Am. Dec. 759; Sims v. Hutchins, 8 Smedes & M. 328, 47 Am. Dec. 90; Cobb v. Hall, 29 Vt. 510, 70 Am. Dec. 432; Galway v. Shields, 66 Mo. 313, 27 Am. Rep. 351; Day v. Wilson, 83 Ind. 463, 43 Am. Rep. 76; McKinney v. Harvie, 38 Minn. 18, 8 Am. St. Rep. 640; Ketchum v. Evertson, 13 Johnson 359, 7 Am. Dec. 384; Galvin v. Prentice, (N. Y.) 6 Am. Rep. 58. The rule is different, of course, where the vendor is unable or refuses to execute the contract on his part. In such ease the vendee may recover, not upon the oral contract, but on a contract which the law implies to refund the amount paid as for money had and received to use of plaintiff. Blanchard v. D. L. & L. M. Railroad Co., (Mich.) 18 Am. Rep. 142; Sims v. Hutchins, supra; Jellison v. Jordan, 68 Me. 373; Nugent v. Teachout, 67 Mich. 571.
There are decisions holding with the views of plaintiff’s counsel, that money so paid may be recovered by the vendee, notably Brown v. Pollard, 89 Va. 696; Nelson v. Shelby Mfg. Co., (Ala.) 38 Am. St. Rep. 116. In Alabama and Michigan, and in some of the other states, contracts falling within the purview of the statute of frauds are thereby declared to be absolutely void and unenforceable; while our statute amounts rather to a rule of evidence. Indeed, the subject of the chapter, chapter 98, Code 1913, is, “Of written evidence”, and the subject of the first section is: “When written evidence required to maintain action”, and it provides that “No action shall be brought in any of the following cases”,
The judgment below will, therefore, be reversed, and a judgment entered here re-instating the verdict, and that the plaintiff take nothing by his action, and that the defendant recover of the plaintiff his costs incurred in this court, as well as those incurred in the circuit court in this behalf expended.
Reversed and rendered.
