Thе defendant agreed to sell, and at a future period to convey, certain lands to Bonesteel, the plаintiff’s assignor, for the consideration of three thousand five hundred dollars, which Bonesteel paid at the time, fifteen hundred dollars in money, and the residue by his promissory note; and the defendant further agreed, that at the expiration of one year, if Bonesteel should so desire, and give thirty days’ notice, he would pay back to Bonesteel the three thousand five hundred dollars with the interest thereon. The defendant did not convey in pursuance of the contract; and the proper notice was given to have the money refunded which Bonesteel had paid. The defendant did nоt repay, and the plaintiff thereupon brought this action, claiming to recover the fifteen hundred dollars with interest. As Bоnesteel had not paid the note, the plaintiff’s claim was limited to the sum which has been mentioned. That sum he has reсovered, and the recovery seems to be a very proper one.
But it is said that the contract was void fоr the want of mutuality, and a sufficient consideration. The agreement was signed by both parties, and was equally obligatory upon both. It is true that Bonesteel did not, in terms, engage to do any thing on his part; but that was because he performеd his part of the contract at the time it was made, by paying the stipulated price of the land, which was all he had to do. And although no consideration for the defendant’s promise was expressly mentioned in the writing, it is easy to see that [252] there was a consideration; to wit, the purchase of the land, and *252 the payment of the stipulated price. And this was a good consideration, although Bonesteel had the right to rescind the purchase, and have his monеy hack again, with interest, at the end of a year. In effect, this was an alternative agreement, either to sell аnd purchase land, or to borrow and lend money, according as Bonesteel should decide at the end of thе year. If he gave no notice, it was a sale and purchase of land; and as the price was already рaid, there could be no question about a sufficient consideration for the defendant’s promise. If Bone-steel gave notice, it was then in effect, a borrowing and lending of the three thousand five hundred dollars; and clearly, the lending of the money was a sufficient consideration for an agreement to repay it at the end of a year with interest.
It is said that the promise to refund the money was void, because the defendant was to convey the land in less thаn a year, and there was no stipulation on the part of Bonesteel to reconvey in case he should subsеquently elect to have his money back again. It is true, that there is no stipulation, in terms, to re-convey in that case, but such an obligation may, I think, be fairly implied from the nature of the transaction. If Bonesteel should give notice at thе end of the year, it would be equivalent to saying that he intended to rescind the sale; and he would not be allowed to recover back the money, without re-conveying the land. If he could recover in a court of law, it is cleаr that equity would compel him to re-convey. But I think he would be obliged to do it, before he could recover at lаw.
In this view of the case, there is no reason why the plaintiff should not recover in an action on the contract, for not paying back the money in pursuance of the agreement.
But let it be granted that the contract was void, not because it was illegal, but for want of mutuality. Then the defendant has got the money of Bonesteel without giving any thing in return. Hе is bound in equity and good conscience to repay it; and I see no reason why it may not be recovered in аn [253] action for money had and received to the use of Bone-steel. To this the defendant answers, that this is not an action *253 for money had and received to the use of Bonesteel; hut an action upon the written agreement, and must stand or fall with it. It is true that the pleader has stated the written agreement, and all the facts necessary to show a right to recover upon it, if it is valid. But it is also true that the same facts establish a right to recover back the money, if the agreement is void. This is an action under the code, and the whole case is set forth in the complaint. Upоn the case as it is stated in the complaint, and has been found by the jury, the plaintiff is entitled to recover, whether the written contract is good or bad; and the defendant can not defeat the action by giving it a name, or becаuse the pleadings do not conform to the old precedents. It is questionable whether it would be good pleading under the code to follow the old form, and say, that the defendant was indebted to the plaintiff in a certain sum, for sо much money had and received by the defendant, to the plaintiff’s use. The more proper course would seem to be that which the plaintiff has adopted, of stating the facts which show that the defendant has received money which belongs to the plaintiff.
The last objection made to the recovery is, that by failing to pay the two thousand dollar note, Bonesteel forfeited all right under the contract; and that the defendant was neither bound to convеy, nor to refund the money he had received. It is a sufficient answer to this objection, that it no where appears when the note was payable. It may be that the note was not due until after Bonesteel had given notice for thе purpose of rescinding the purchase; and it could not be necessary for Bone-steel to pay money which he had a right to recall the next moment.
I see no error in the judgment, and am of opinion that it should be affirmed.
Judgment affirmed.