On the tenth day of October, 1887, Lewis Shively purchased a tract of land from the defendant under a written contract for the sum of $4,004; $1,334.66 was paid in cash, the balance was to be paid in three installments, the last payment being due on the 10th of October, 1889, and the defеrred payments, if not paid when due, were to bear interest at the rate of twelve per cent per annum until paid. The first рayment was the only one made by Shively, and nothing further
Respondent rests his case upon the claim thаt appellant, having sold the land to other parties, thereby rescinded the contract and rendered itself liable for а return of the money already paid. Appellant insists that Shively’s failure to pay the deferred payments when due, or when demаnded, was such a default upon his part as to relieve appellant of any further obligation toward him. Appellant statеs in his answer that by reason of respondent’s default as to the non-payment of the installments due, it treated the contract of sale as rescinded, and thereupon sold the land to other parties. While in a subsequent portion of the answer there is a denial of the allegation that defendant rescinded the contract by reason of such sale, yet the pleading, takеn in connection with the balance of the record, indicates that a rescission by defendant was fully admitted. This is conclusively shоwn by an answer to an interrogatory of the court, wherein counsel for appellant said: “We treated the contraсt as rescinded, and after about a year and a half sold the land to other parties. That is alleged and admitted in the plеadings.”
The general principle involved in this case, as disclosed by the pleadings and facts stated, has been directly pаssed upon by this court in a number of recent decisions, and the law upon the question must be deemed settled beyond dispute. Thesе cases hold that when a contract of sale and purchase of land is abandoned or rescinded by the parties, the vendee, though in
The assignment to plaintiff of the cause of action evidenced by this litigation was no violation of those provisions of the contract prohibiting its assignment. This is not an action arising under the contract, but an action for monеy had and received, (See Joyce v. Shafer,
It is insisted that the general demurrer to the complaint should have been sustained. The complаint alleged that the defendant sold the land to other parties, who took possession as owners thereof, and made lаrge and lasting improvements thereon, and that by reason of such sales the defendant had rescinded said agreement. These facts are all that is alleged as to the rescission by defendant, and we think them wholly insufficient to support a cause of аction based upon rescission. 'Rescission or abandonment of the contract by defendant gives plaintiff his cause of action, but a transfer of the land to third parties of itself does not constitute such abandonment or rescission. It does not neсessarily follow from such transfer that defendant has placed it out of his power to comply with the terms of fhe contract. Such transfer creates no breach of the contract. / Non constat but plaintiff’s rights were expressly reserved by its terms. Defendant as yet hаs not defaulted, and might not suffer default when the balance of the purchase price was tendered and a deed demanded; and the plaintiff is not entitled to recover the money paid until he shows the default of the defendant. This question was directly presented in Joyce v. Shafer,
We find no other matters demanding our attention.
For the foregoing reasons, let the judgment and order be affirmed.
Harrison, J., and Paterson, J., concurred.