22 Fla. 476 | Fla. | 1886
delivered the opinion of the court:
Appellees, who are husband and wife, sued appellant for money had and received.
On the 28th of May, 1885, the appellant and Darwin B. Givens entered into an agreement by which it is witnessed that Evans “ has this day sold his entire stock of merchandise with store fixtures ” to Givens, “ the consideration thereof to be the invoice price of the same taken from the invoice with five per cent, added for freight. Said invoice to be taken Monday, June 1st, 1885.” Givens “ to take possession of same when invoice is furnished and said purchaser to pay cash for same.” Evans further agrees to. lease his entire store building including up stairs and back kitchen, with lot, to Givens, for one year from June 1st, for the sum of $15 per month in advance. Givens agrees to allow Evans to occupy up stairs and kitchen for a residence for his family for sixty days from June 1st, 1885. Givens agrees to allow Evans to erect a dwelling house on the rear end of lot if he so desires. “ It is further agreed that on the failure of either party to carry out this agreement, the party so failing to pay to the other party the sum of $25.”
The money sued for was paid on the contract and it is not denied that it was the wife’s. After making the payment, $200, Givens notified the appellant that he could not carry on the contract and asked for a return of the money*
The contract, so far as it is involved in this case, is one for the sale of personal property. It is, in itself, executory, (Benjamin on Sales, Vol. 1, §§309, 315, 325, 329, 336, 377 ; Carnes vs. Apperson, 2 Snead, 562 ; Love vs. Cook, 27 Ala., 624;) and the contrary is not contended. Whether it had been executed at the time the appellee, Grivens, withdrew from it is a question upon which there is a conflict of testimony and the jury have settled it in the negative. It is not necessary to set out the evidence; there is sufficient testimony to sustain the finding.
The judge charged the jury as follows: “ This is an action brought to recover back money alleged to have been paid to defendant under a contract that the plaintiffs claim was never consummated and under which a forfeit was agreed on between the parties to be paid in the event either party should back out. Plaintiff claims that he had a right to pay the forfeit and be released from the contract and the defendant claims that the contract was so far consummated that the plaintiff had no right to decline to finish the payments, and that he was bound under the law to do so. The The court charges you that if the contract was still an ex-ecutory contract when the plaintiff backed out of it that he is released as to all liability except as to the forfeit, but if the contract was fully executed and nothing remained unfinished between the parties the plaintiff could not recover.” There was no exception to this charge. The court having then been asked to give a special instruction charged the
Looking at all the facts of the case, as disclosed by the testimony, we do not see that any actual injustice has been done to or injury suffered by appellant. There is testimony to the effect that he was willing to pay the money back in installments, and that he never delivered the goods, and clearly tending to show that he treated the contract as rescinded.
The judgment is affirmed.