36 Ky. 335 | Ky. Ct. App. | 1838
delivered the'Opinion-of the Court.
This action of assumsit was brought by ' Pate against Murray, to recover five hundred dollars alleged to have been received by the defendant, from a certain John O. Tunstall, for the use of the plaintiff, and to be paid to him when he should make and deliver to the defendant, a deed conveying a certain tract of land >to said Tun-stall; and the plaintiff avers that he did make and tender the deed to the defendant, but the latter refused and still refuses to pay the said five hundred dollars.
The defendant demurred to the declaration, and pleaded non-assumpsit; and a verdict and judgment having been rendered against him, he has brought the case up for the revision of this Court, upon exceptions taken to opinions of the Circuit Court, in giving and refusing instructions to the jury.
It was proved on the'trial that, upon an agreement which seems to have been verbal. only, for the sale of land by Pate to Tunstall, at the price of five hundred dollars, the latter placed in the hands of Murray, the
To the instruction given there are several objections:
First. There is no evidence conducing to prove that the bank note was received as so much money; or that it was used, in any proper sense of that term, by Murray himself; and he being a mere depository, or stake holder, of the specific article, could not be liable for more than its value, for failing to deliver it to the person for whose use he held it.
Second. The note not having been received expressly as money by Murray, nor expressly agreed to be so received by Pate, neither its nominal amount, nor its value could have been recoverable in this action for money had and received. (1 Chit. Pl. 385.)
Third. But there ais still more serious objection to the instruction.; which is that, upon the evidence in the case, the plaintiff was not entitled, either to the note or its value. The contract by which this note, or its nominal
That the purchaser deposited the money in the hands of a third person, to be paid to the vendor, on his making a deed, does not essentially vary the case. The fact of making the deposite, even with directions to the depository to accept the deed, could not, at the utmost, have any greater effect than to authorize him to take the deed for the purchaser, and thus to execute the contract.— Even in that case, until the deed is actually accepted, the contract being still in parol, is not obligatory on either party; and the purchaser may either revoke the power of the depository to accept the deed and pay the money, or he may reject the purchase himself, and recall his money. For the vendor is no more bound by the interposition of a third person, who is to pay him the money, than he is without it, nor is he bound by his tender of a deed, unless it be actually accepted. It would be absurd to suppose that he could; in such a case, force the depository to pay the money, or to accept the
The evidence conduces strongly to prove, if it does not dearly establish the facts to be as they have been to be in stating these principles; and as the plaintiff could not have recovered, if such facts had been found by the jury, the Court erred in withdrawing those facts from the jury, as it did do by informing them that the plaintiff could recover in this action, if the Bank mote was received as money, and used by the defendant.
Wherefore, the judgment is reversed, and the cause remanded, that a new trial may be had, on principles not inconsistent with this opinion.