8 Gill 155 | Md. | 1849
delivered the opinion of this court.
The declaration in this case contained the several money counts. A verdict was rendered for the appellee, and of this verdict the appellant cannot complain, unless he can show that it was, or might have been the result of erroneous instructions given by the court to the jury, in the course of the trial.
There was evidence tending to prove that the appellant did receive money as the money of the appellee, and the former had to prove that it became his money in consequence of some valid contract made by a person authorised to dispose of it, and to vest the title to it in him.
The appellant insists, that the appellee cannot recover in this case, because, according to the proof, the money was received by him (the appellant,) under an agreement for the sale of land, which, not being in writing, is void by the statute of frauds. No doubt the contract in relation to the land, could not be enforced, especially at law, not merely because it was not in writing, but also because, by the terms of it, the appellant was to remain the owner of the land, if the appellee, when he came of age, refused to purchase (to make a valid contract for) it.
According to the proof, no purchase was made by the appellee, and he cannot now claim the land. It is immaterial, then, whether the contract was in writing or not. It was not understood to be a contract actually made, and not to be altered, but with the consent of both parties, but, as a witness slates, it was a contingent arrangement, to be binding on the
The contingent arrangement is now not to take effect; upon what principle, then, can the appellant claim a right any longer to withhold the money? “When the contract is wholly rescinded, either by the mutual consent of the parties,,or by virtue of a clause contained therein, the common count lies to recover money paid under the agreement.” Chitty on Contracts, 624. See, also, 1 Henry Blackstone, 65. Cowper, 197.
If the appellant is to retain his land, surely he is not to retain money which he received, because it was to be a payment of so much of the purchase money, provided the owner of the money afterwards consented to be the purchaser of the lands. The money is in the hands of the appellant; yet it is not to be his money, unless it becomes a part'of the purchase money to be paid for land when purchased (by a valid contract, of course,) by the appellee, from the appellant. It is money received by the latter for the former, if it be not a payment, and it is not to be a payment unless a valid sale of the land after-wards takes place.
What has been said, is sufficient to show that the court did not err in refusing to instruct the jury, that if they believed that the agreement, as proved by the plaintiff, (appellee,) related to the sale of lands, and was not in writing, the same was void, by the statute of frauds, and the plaintiff is not entitled to recover.
To the first instruction, which the court, according to the record, gave to the jury, the appellant cannot object.
The second instruction required the jury to find, from the testimony, that the money with which the witness (H. W. Evans,) made the several payments to the appellant, on the parol contract, was money which he had given to his son, or
This case may be regarded, and, in fact, is a contract made, or attempted to be made, by one person for another, its validity to depend upon the subsequent assent of the latter. The money received by the intended vendor, whether it was obtained by loan or gift, the jury was authorised, by proof in the case, to consider as the money of the appellee, to be recovered back by him, if the contract was not ratified.
In deciding any of the questions which this record brings before us, we are not to enquire, what were the circumstances of the father of the appellee, at the time when any of the money claimed in this suit was received by the appellant. Whether he could afford to give so much money to any one of his children, is a question which does not belong to this case.
Another prayer, so far as it asked the court to say to the jury, that the money was the money of the appellee, if the facts therein stated were proved to the satisfaction of the jury, is correct. In this prayer, however, it is insisted, that the courl was asked to assume, and in granting the prayer did assume, that H. W. Evans paid the money to and for the use of the said T. J. Evans. This, it must be granted, was telling the jury that some money was paid by the former for the latter. But, could this prejudice the defendant in the court below? The jury were to find when the money was received by the appellant, the amount received, and quo animo he received it, and without proof, which satisfied them, that the sums of money received by the appellant, for the appellee, were sufficient to sustain the jurisdiction of the court, a verdict for the plaintiff would, in effect, have been a verdict for the defendant- In the case of the Turnpike Company vs. Barnes, (6 H. & J., 57,) the verdict was (in consequence of a misdirection by the court,) for the defendant, when it ought to have been for the plaintiff, but for a sum less than $50, and, of
There is no error in the last instruction. The plea of limitations could be no bar to a recovery, if the jury were satisfied, that within three years before the commencement of the action, the defendant acknowledged the existence' of the debt, without any refusal to pay, or excuse for not paying it.
Upon an examination of the record in this case, we do not discover any ground for a reversal of this judgment.
judgment affirmed.
Dorsey, O. J., dissented.