186 Iowa 161 | Iowa | 1919
I. As a supersession to the contract originally made, the parties made a second one. The price was $325. The first contract was made on April 15, 1909; the second on April 28, 1911. At the time the second one was made, the payments then made amounted to about $116.26. The second contract took no account of part of this payment made. The total payments, including said' $116.26, aggregate $277.25. Counting time of possession most favorably to appellant, by starting in from the time the second contract was made, and she had possession of the instrument from April 28, 1911, to the time at which the company retook the instrument- — something like four years and a half. It is not -strained to assume that, in addition to losing the use of this instrument for that time, the company suffered some loss by the depreciation occurring during that time. The petition to which the demurrer was sustained does not, in terms, refer to use and depreciation, makes no tender on their account, and demands repayment of every dollar plaintiff has paid on the contract, to wit, $277.25. One ground of the demurrer is that “the retaking of the possession of the said piano by means of a writ of replevin at a time when payments attached to plaintiff’s
The sole answer of the appellant is that the petition is not demurrable for having failed to take notice of any reduction for use and depreciation, because the vendor had the right to plead these “as an offset or in a counterclaim to this suit;” and that it was then for the jury to determine what should be allowed for use and depreciation. It is true that, in a suit on the equity side, the chancellor may mould a decree which allows a recovery of payments made, by deducting from the allowance made such sum as is found to be due for use and depreciation. It is true that, in Hays v. Jordan, 85 Ga. 741 (11 S. E. 833), such reduction was effectuated by a verdict, but also true that this was done on an express statute allowing so moulding the verdict, on the law side. But all this cannot avail here. We have no
Again, the petition was a declaration that repayment was due upon implied contract, and that some of the contract obligation had been paid by use and' depreciation. And as it was not stated how much had been paid, there, was consequently no allegation that the contract obligation was unpaid. For all that appeared, had the amount of use and depreciation been alleged, it might have been an amount sufficient to equal the payments that had been made. Now, therefore, it was not the duty of the company to plead use and depreciation by way of set-off or
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“If such right of possession had been asserted, and the property retaken without suit, the vendee under a contract like this would have no cause of action to recover back money already paid.”
, Nor do we agree that the rule of the case is not in point. We see no force in the criticism by appellant that, because Bayfield’s case is a replevin action, its said holding is inapplicable “under our statute.” There is no reason why it might not be properly decided in replevin whether the contract of plaintiff had been rescinded, for that question might bear on his right to the possession! In Raymond Co. v. Kahn, 124 Minn. 426 (145 N. W. 164), it is held that such taking is not a rescission of the contract, but an acting under the contract, and that, therefore, “the rule requiring one to rescind a contract to put the other in statu quo ¡should not apply.” The reasoning in Haynes v. Hart, 42 Barb. 58, is that, where the vendor resumes possession on default in payment, and on a contract giving him authority to do so, there is no rescission, in the sense that requires one to put another in statu quo, but there is a termination of the contractual relation.
While (as both parties concede) our own cases- have not directly settled some of the questions at bar, it seems to us it is settled in this jurisdiction that such a retaking does not work a rescission, and that, hence, cases in other
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III. Little importance has been attached to the presence of an express agreement that payments made should be forfeited when it was clear that the vendee was wholly in
“A buyer who, without lawful excuse, refuses to go forward with his contract, is not entitled to recover back money paid on account thereof. * * * It seems to us that there is little equity and certainly no sound policy in allowing a buyer under such circumstances to be, at pleasure, quit of his contract, with no other liability than such as the law would have implied had there been no contract of sale a,t all.”
And Tiedeman on Sales, Par. 219, Parsons v. Smilie, 97 Cal. 647 (32 Pac. 702), Hicks v. Lovell, 64 Cal. 14 (27 Pac. 942), and Thirlby v. Rainbow, 93 Mich. 164 (53 N. W.
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■ One attempted avoidance seems to be that Haynes v. Hart, 42 Barb. (N. Y.) 58, has been overruled by statute and superseded by Roach v. Curtis, 191 N. Y. 387. It is further pointed but that the rule contended for by appellee has been made nugatory in New York, Ohio, Tennessee, Vermont, and Massachusetts, by statute enactment. The avoidance destroys itself. The Roach case, in superseding the Haynes case, but obeys the mandate of the New York' legislature. And some decisions in other states do no more than abrogate in those states the rule applied in this case by the trial court, because, and merely because, the legislature has so decreed. The enactment of such statutes is, as much as anything, a legislative concession that, without such statutes, the rule would be the one under which the demurrer here was sustained.
For Findley v. Koch, 126 Iowa 131, appellant claims that therein this court recognized the right to recover payments made upon a contract which the vendor has rescind
“To say that the subsequent sale of the land gives a right to the plaintiffs to recover back the money paid on the contract would, in effect, be saying that the defendant could never sell it without subjecting himself to an action by the plaintiff.”
In our opinion, the ruling and judgment of the trial court must be — Affirmed.