87 Vt. 1 | Vt. | 1913
Before and on October 13, 1910, the orator lived in Wardsboro, this State, and was the owner of real estate there located, and described in the master’s report, it being his farm and homestead, also of the personal property enumerated therein, on said farm. At the same time, the defendant lived in Manorville, on Long Island, in the State of New York, and owned certain real estate there.
On the day named, at the orator’s said farm, the orator and the defendant entered into a verbal contract whereby the orator agreed to sell and convey his real estate and personal property above mentioned to the defendant for the sum of thirteen hundred fifty dollars. The defendant agreed to take the property at that price, then and there paying the orator the sum of one hundred dollars toward the purchase price and taking his receipt therefor. The master finds that the time when the balance of the purchase money should be paid, a deed and the possession of the property given, was not definitely agreed between the parties, but it was understood to be as soon as the defendant could dispose of his said property on Long Island. And such being the understanding, the law implied that the defendant should dispose of it within a reasonable time, and if he failed so to do the orator was entitled to the balance due him, notwithstanding this property was not sold. Capron v. Capron, 44 Vt. 410; Sears v. Wright, 24 Me. 278; Crooker v. Holmes, 65 Me. 195, 20 Am. Rep. 687; Nunez v. Dautel, 19 Wall. 560, 22 L. ed. 161.
The Statute of Frauds is set up as a defence in the answer, but we pass over that question since, as will be seen, the decree as rendered could not have been based upon that ground. Our consideration will be confined to the question of rescission or abandonment of the contract, and questions incident thereto.
On December 18, the orator by letter asked the defendant concerning the time of his coming, saying, ‘ ‘ I believe you thought it would be in February.” Defendant’s answer to this inquiry does not appear. On January 13, 1911, the orator in a second letter to the defendant said, “Of course I would like to close
On April 10, the defendant paid the orator the further sum of two hundred dollars on the purchase price and took his receipt therefor. On the 19th of May, the orator notified the defendant that he must pay up or get out in thirty days. In consequence of this notice the defendant purchased another place and, on May 26, moved his furniture and his family away from the orator’s premises, without giving notice to the orator, and unbeknown to him. When the orator learned they were gone, he went to see the defendant to ascertain if he was not going to take the place according to the trade. The Long Island property had not then been sold and deeded by the defendant and was not until July 20, 1911.
It is clear that the parties were not acting upon their original understanding whereby time for completion was made de
In equity each party to a contract annulled by mutual consent is entitled to have restored to him that which has been received by the other by virtue of the rescinded contract, and properly belongs to the former. Applying this principle, the
Decree affirmed and cause remanded with directions that the decree be altered to include an equitable accounting by the defendant to the orator for benefits received by way of use of, and income from, the property in question. Let the cause be proceeded zvith accordingly.