161 Iowa 426 | Iowa | 1913
By the contract, defendant agreed to sell and convey to plaintiffs certain land for $1,300. A payment of $150 was made at the time of the execution of the contract. Defendant was to execute a deed to plaintiffs when deferred payments had been made. The contract provided
In the California case cited by appellant, Glock v. Howard, 123 Cal. 1 (55 Pac. 713, 43 L. R. A. 199, at page 207, 69 Am. St. Rep. 17), it was held that the vendee, who was himself in fault in the payment of a portion of the money, could not, against the will of the vendor, repudiate the contract and recover the portion already paid. But in the same case it was said: “There have been many cases before this court involving the rights of parties to agreements for the sale and purchase of real estate, in which it has been held that after the parties have rescinded the agreement, or mutually agreed to abandon it, the vendee may recover the money which he had paid in part performance of his contract (citing cases); but it had never been held that while the contract was insisted upon by the vendor, and he had done no act by which it might be contended that he had abandoned the contract, or was in any respect in default, the vendee could recover the money paid by him in part performance of the contract.” To the same effect, see Frey v. Stangl, 148 Iowa, 522, 526, involving however, a parol contract and the statute oí frauds. In that case, it was said: “As the contract is not void it is manifest that the vendee may not recover money paid in
After the conveyance by defendant to Kitchell, defendant was not in a position to insist on performance. In the case at bar, plaintiffs' had not repudiated the contract, but sought to rescind it for cause. Defendant should be held to have assented to the rescission by his sale of the land and putting it beyond his power to perform. Upon discovering that the land had been sold, plaintiffs dismissed their claim for damages for the fraud, thus on their part assenting to the sale and defendant’s abandonment of the contract. So that, if plaintiffs attempted to rescind and defendant assented thereto, and there was a mutual rescission, or if there was an abandonment of the contract by defendant by his sale to Kitchell, assented to or acquiesced in by plaintiffs, then plaintiffs would in either event be entitled to recover back the $150 paid. If the contract was mutually rescinded 'or abandoned, defendant could not keep both the land and the money.
There may be a mutual rescission or abandonment. Tague v. McColm, 145 Iowa, 179; Quarton v. Law Book Co., 143 Iowa, 517, at pages 528, 529; Glock v. Howard, 123 Cal. 1 (55 Pac. 713, 43 L. R. A. 199, 203, 69 Am. St. Rep. 17).
Under the record, we think defendant could not claim the forfeiture without serving the notice required by the statute; but, in view of the conclusion we have reached, it is not necessary to further consider or discuss that question. The court did not err. Affirmed.