Lawrence v. . MillerLawrence v. . Miller
The plaintiff is the assignee, of the vendee in a contract' in writing and under seal for the purchase of lands. The contract called for the payment by the vendee, of the sum of $2,000 on the day of. the making of it, and that sum the vendee then paid. There is no time or place named in the contract, for the performance by either party of any other part of the agreement, though the vendee was to make further considerable payment of money, and to give a bond with a mortgage on the lands; and the vendor was to give a deed for them. The parties met, however, on the 1st day of April, then next, with a view to perform! The vendor then produced the deed, told the vendee that he had it and was ready, and laid it upon the table, and told the vendee that it was there. The vendee was not ready to perform, and asked further time to get ready thereto. The parties by writing, not under seal, on the contract, agreed upon the 1st day of May, then next. On that day they met.. The vendor had his deed,-told the vendee that he was all ready, and laid it upon the table. The vendee was not ready and so stated, saying that he could not get the money, could not get the place, that he was not ready. The vendee then asked for more time. The vendor replied that he should not give him another day. The parties did no more on that day. They did not meet again for the purpose of performance, nor did either ever after make to the other" an offer or demand of performance. The vendor, after the 1st day of May, sold and conveyed the lands to other persons. He kept the $2,000 paid by the vendee. The plaintiff now brings her action to recover the sum of $2,000 thus paid and .kept. Her claim;' in one branch of it, rests upon the allegation, that the vendee was never so far put in default by the vendor, as that his rights under the contract were forfeited and the vendor entitled to rescind it and keep the money paid. This allegation is sought to be sustained by asserting the law to be, that a tender of a deed by the vendor to the vendee was a condition precedent to the obligation of the latter to perform, and was needful to put him in default, or in any manner to affect his rights.' There is no doubt that as a general rule, it is often
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stated, that where the vendee in such a contract has performed his part of it up to a given period, he cannot be put in default for non-performance further, without a tender to him of a deed and a demand for what more is to be done by him.
(Leaird
v. Smith,
A subsidiary point is made by the plaintiff that the oral arrangement of the parties to meet on April 1, and the written agreement, not under seal, for further time until May 1, could not change the contract, it being under seal, and that, therefore, there was no definite time at wMch the vendee was bound to perform, and so the vendor could not exact performance on the latter day. But for the parties to agree on a day was not a change of the contract, for it was silent upon that. To agree upon a day, in such case, is a thing that may be done by parol. The time, when finally agreed upon, was an essential part of the-contract. They had met, and the vendee was unready. At Ms asking, and to give him time in which to get ready, the " later day was fixed upon. A day agreed upon, in such circumstances, may be considered as an essential part of the agreement.
(Dominick
v.
Michael,
4 Sandf. [Sup. Ct.] 374;
Havens
v.
Patterson,
There is another branch of the case, as presented by the brief of the appellant. It is ingemously argued, that though the vendee has made breach of Ms contract, all that the law will give for that is the damage that the vendor has suffered thereby; and that, therefore, he has no right to keep the $2,000, though it be granted that he had a right to rescind the contract. We do not see in the case any exception that distinctly raises '* this point in this court. There are no requests to find. There is no finding of fact that presents it. There is no conclusion of law which of necessity includes it. \ ''he position concedes that if the vendor has suffered damage ,..e may keep of the payment enough to satisfy that. The matter of the vendor’s damage was not entered into on the trial. We cannot say that it was nothing, nor how great it was. The appeal book does not show us that it was not as much as the payment.
We need not rest there, however, which would be but to avoid the point. It is declared by tMs court in Havens v. Patterson (supra), that it is never permitted either at law or in equity, for one to recover back money paid on an executory *140 contract that he had refused or neglected to perform. The plaintiff in the action before us sues for the whole amount of the money paid by the vendee. The defendant came by it rightfully ; in pursuance of a contract lawfully made, between competent parties. He has made no breach of that contract.
. He has failed in no duty to the vendee. Wherefore, then, should he give up that which was rightfully his own ? When and whereby did it cease to be his and to be due to the ven,dee? If the contract had been kept by both parties, the money paid would still be his of right. The contract would have been kept but for the breach of it by the vendee. To allow a recovery of this money would be to sustain an action by a party on his own breach of his own contract, which the law does not allow. When we once declare in this case that the ven- . dor has done all that the law asked of him, we also declare that the vendee has not so done on his part. And then to maintain this action would be to declare that a party may violate his agreement, and make an infraction of it by himself a cause of .action. That would be ill doctrine. (See
Ketchum,
v.
Evertson,
We see no ground for a reversal of the judgment.
All concur.
Judgment affirmed