| N.Y. Sup. Ct. | Nov 15, 1809

Thompson, J.

delivered the opinion of the court. This was an action for money had and received, and for work, labour and services. The object of the suit, as appears by the case, was to recover back money paid by the intestate to the defendant, on a parol contract for the purchase of a tract of land, which contract had never been fully executed; and also to recover compensation for the improvements made by the intestate, while in possession of the land under such contract. It does not satisfactorily appear from the case, what were the precise terms of the contract, made in the year 1803. It is obvious, however, from what passed between the parties in the spring of 1807, that neither of them pretended that the terms of the contract had been complied with. The conduct of the defendant can be viewed in no other light than as a relinquishment of the contract. He refused to receive any more money from the plaintiff. He took back the possession of the premises, which had previously been in the possession of the intestate ; offered them for sale, and actually delivered over the possession to a third person. These acts are altogether inconsistent with a claim to have the contract completed. If the contract be considered as rescinded, no doubt can be entertained but that the plaintiff is entitled to recover back the money paid by the intestate. The case of Towers v. Barrett (1 Term Rep. 133.) fully establishes the principle, that assumpsit for money had and received lies to recover back money paid, on a contract which is put an end to; either where, by the terms of the contract, it is left in the plaintiff’s power to rescind it, by any act, and he does it, or where *88the defendant afterwards assents to its being rescinded. I see no ground, therefore, upon which the defendant can resist a reimbursement of the sums he has received as a payment upon the contract, which he has himself put an end to. The plaintiff, however, ought not to have recovered any compensation for the improvements. There was no express or implied undertaking by the defendant to pay for them. When the work was done by the intestate, it was for his own benefit; and if he voluntarily abandoned his contract, without any stipulation as to the improvements, he must be deemed to have waived all claim to any compensation for them. The verdict ought, therefore, to be reduced to 263 dollars and 36 cents, being the money actually advanced, and the interest. Upon the plaintiff’s consenting to take judgment for that sum only, and to remit the residue, the motion on the part of the defendant will be denied; otherwise it is granted with costs to abide the event.

Judgment accordingly.