167 Mo. App. 553 | Mo. Ct. App. | 1912
Plaintiff sued to recover $500 paid defendant on the purchase price of a farm in Morgan county. The theory of the petition on which the action first went to trial was that defendant had breached the contract thereby giving plaintiff the right to rescind and to recover the money paid by him in part performance. Plaintiff was allowed to recover on this theory but on the appeal of defendant we held that since the evidence disclosed beyond question that plaintiff was at fault in not paying o.r offering to pay the remainder of the purchase money in the time and manner provided in the. contract, he could not recover the money he had paid in part performance in an action founded on the contract. [140 Mo. App. 19.] But that as it appeared in the evidence that the' contract did not attempt to provide for a forfeiture nor to treat the down payment as liquidated damages and that defendant, in effect, had declared the contract rescinded immediately after the default of plaintiff, wo
The only issue of fact contested at the trial was that relating to the value of the land on the date of the default. The evidence of plaintiff tended to show that such value exceeded the contract price and the evidence of defendant was to the effect that, owing to a general financial depression prevailing at that time, the market value of the land was much less than the contract price. This issue was submitted to the jury and was decided in favor of plaintiff. The verdict and judgment awarded plaintiff were for the full amount claimed in his petition. After unsuccessfully moving for a new trial and in arrest of judgment, defendant-appealed.
In our former opinion we said: “It does not follow from the views expressed that plaintiff necessarily must lose the $500 that he paid on the purchase price. The contract does not attempt to provide for the retention by defendant pf the down payment as a forfeiture or as liquidated damages for the breach of contract by plaintiff and if defendant suffered no damages on account of the breach, plaintiff, under proper pleadings, would be entitled to recover the full amount
The petition was amended and the cause was tried for the second time in conformity with this view of the law and it is quite clear that the object of defendant in prosecuting this appeal is to obtain, if «possible, a reconsideration and reversal of that view. The rule is well settled and springs from the most elemental principles of justice that a party to a contract, himself at fault in its performance, cannot maintain an action for its rescission. To hold otherwise would be to allow a wrongdoer to take advantage of his own wrong. This rule has been recognized and applied in this State in a number of cases. [Felix v. Bevington, 52 Mo. App. 403; Crews v. Gfarneau, 14 Mo. App. 505; Webb v. Steiner, 113 Mo. App. 482; Davis v. Barada, 115 Mo. App. 327.] But it has no application to eases such as the present where the vendor having .elected to rescind the contract on account of the default of the vendee, the latter, acquiescing in that action, sues to recover that portion of his performance of the contract in excess of the damages actually sustained by the vendor on account of his breach.
The cardinal rule in the assessment of damages for the violation of a contract is actual compensation to the injured party. Punitive damages are unknown to the law of private contracts and will not be awarded even when the parties stipulate for them. On what principle, then, may a vendor who has rescinded the contract on account of the vendee’s default be allowed to retain punitive damages from the mere fortuitous circumstance that he has received money in excess of his damages paid by the vendee in part performance of the contract? If plaintiff had made no payment before default, defendant, in an action for damages
A single illustration will s'erve to emphasize the' injustice- of defendant’s contention. The purchase price of the land w'as $6700'. Suppose plaintiff had ■ paid all but $100 and then had breached the contract.He could not have maintained an action based on a purpose to'rescind since he would not be allowed to found a cause on his own wrong or to deprive defendant of his choice of remedies, but after defendant had exercised his choice and had elected to rescind, would anyone have the hardihood to argue, in an action brought by plaintiff for' money had and received, that defendant could not be compelled to return all of the purchase money paid in excess of just compensation for the loss he had sustained in consequence of the breach? The principle' for application in such case is the same whether the part performance is'ten or ninety per cent of' full performance.
' We are aware that authorities may be found and are cited in the brief of counsel for defendant that support his position, but we think'the rule we have stated is the only one that can be harmonized' with the demands of reason and justice and with the fundamental principle of damages to which we have referred,' an'd we find our views are well supported by authority. The Supreme Court of Georgia say in McDaniel v. Gray, 69
.To the same effect are the decisions of "the Supreme Court of California in Phelps v. Brown, 95 Cal. 574; Drew v. Pedlar, 87 Cal. 443; Cleary v. Folger, 84 Cal. 316. In McDonough v. Marble Co., 112 Fed. Rep. 634, it is said: “The rule is that a party who has failed to perform his contract in full may recover' compensation for the part performed less the damages occasioned by his failure.”
- The best discussion of the'subject we have found in the books is in the case of Michigan Yacht & Power Co. v. Busch, 143 Fed. Rep. 929. In the opinion filed in that ease Judge Lurton says, in part: "
“While the plaintiff cannot recover upon the contract, he may under the common counts recover the money paid by him in part performance to the extent that his payment was beneficial to the defendants a'nd in excess of the damages they have sustained by reason of plaintiff having breached the contract. If the defendants have obtained money which ex aeqúo' 'et dono they ought - not to withhold 'from the plaintiff,they should refund, and the law implies a promise'to that effect. [Murphy v. Craig, 76 Mich. 155, 42 N. W.*560 1907; Walker v. Conant, 65 Mich. 194, 31 N. W. 786; Wilson v. Wagar, 26 Mich. 452.]
“If the defendant had sued the plaintiff for breach of the contract, as they might well have done, the measure of damages would have been, first, their outlay and'expense in carrying the work as far as they did before the plaintiff set them free, less the value of the structure as far as completed and materials, machinery, etc., bought solely to carry out this contract; second, the profits they would have realized if permitted to complete the boat; third, the value of the use of the Helen while in possession of the plaintiff under the contract. Prom this should be deducted the money received from the plaintiff on account of the contract. [United States v. Behan, 110 U. S. 339; 4 Sup. Ct. 81, 28 L. Ed. 168; Anvil Mining Co. v. Humble, 153 U. S. 540, 14 Sup. Ct. 876, 38 L. Ed. 814; McElwee v. Bridgeport Improvement Co., 54 Fed. 627, 629, 4 C. C. A. 525.] The defendants did not sue, but have been sued by the plaintiff for the money paid by him in part performanee. In justice the defendants have no right to more of this money than will compensate them against loss by reason of plaintiff’s conduct. His action is therefore one upon the common counts for money received under an implied promise to pay back that which is in excess of the loss sustained by the defendants by reason of plaintiff’s refusal to carry out the contract. It is in the nature of an action upon a quantum meruit.
“Instead of having done labor or furnished materials in part performance from which the defendants have' benefited, he has furnished money, and it is now Well éstablished that a plaintiff may recover to the extent that he has benefited the defendant by part performance of a contract which the plaintiff himself has failed to carry out; his recovery being subject to recoupment by the damages sustained by the ' defendant.’'’
The judgment is affirmed.
It is agreed by the parties that the vendee plaintiff paid $500' in cash upon the execution of the contract for the sale of the land and that he was to pay the balance at a certain time when a deed was to be delivered by the vendor defendant. It is stated in the opinion that upon the vendee’s failure to make the deferred payment as agreed, the vendor acquiesced and rescinded the contract. On that hypothesis (and the last trial seems to have been on that theory), I agree that he is liable to the plaintiff vendee for the $500 cash payment he received, less whatever his proper damage might be on account of plaintiff’s breach by failing to make the remaining payment. McDaniel v. Gray, 69 Ga. 433; Blitch v. Edwards, 96 Ga. 606; Phelps v. Brown, 95 Cal. 572; Drew v. Pedlar, 87 Cal. 443; Cleary v. Polger, 84 Cal. 316.
But I do not agree to an entire approval of the case of Michigan Yacht Co. v. Busch, 143 Fed. 929, as applied to a contract for the sale of land of the character of that at bar. That case was for the building
In a contract for the sale of' land where the vendee has made part payment and breaches the agreement as to further payments, the vendor being ready, and willing to carry out his part of the contract, the vendee being thus at fault, has no right to demand back his prior payments. If he had that right, no stable contract for a land sale could be made. He would be allowed, simply at his own will, to rue his bargain and get back his money. Sanders v. Brock, 230 Pa. St. 609; Ketchum v. Evertson, 13 Johns. 359; Hudson v. Swift, 20 Johns. 24; Lawrence v. Miller, 86 N. Y. 131; Rounds v. Baxter, 4 Me. 454; McKinney v. Harvie, 38 Minn. 18; Green v. Green, 9 Cowen, 46. We announced-the same rule as applied-to a sale of personal property. Webb v. Steiner, 113 Mo. App. 482. In a contract for the sale of land where- the covenants are dependent, — that is, concurrent acts are to be done by the parties, such as the p ayment of money by the vendee and delivery of'a deed by the vendor, — if the vendee alleges a breach of the covenant to convey and brings his action thereon against the other, he must aver and prove a readiness on his part to perform; and it is said in Hudson v. Swift, (just cited) that his “situation is not ^hanged by suing for-the money paid. He was bound to show that the contract was rescinded, or that he stood ready, and offered to pay the balance due.”