16 Vt. 371 | Vt. | 1844
The opinion of the court was delivered by
It can hardly be said that the present case involves the consideration of any new principle of law. The decision of it depends, as in a majority of cases, perhaps, upon the construction we put upon the facts, and the general principles to which we reduce them.
2. It is objected to the plaintiffs’ claim for the money collected of Pettibone & Munson, that the contract is still open; but we think that is not the case. Whenever the defendant, by his own neglect, puts it out of his power to perform the contract on his part, the plaintiffs might recover back what they had paid, or done, in furtherance of the contract. For, as this contract was not in writing, the plaintiffs could have no other remedy; and the defendant’s conduct was equivalent to a formal rescinding of the contract on his part; and in such case it has been held that, even when the contract was such as to afford redress by special action, the party rescinding was liable, either in general assumpsit for what the other party had done in pursuance of the contract, or to a special action, at the election of the other party. But of late this general proposition has been somewhat doubted; but it was never doubted, that, when the special contract was so informal as not to afford a remedy, and one party rescinded, or abandoned it, the other might bring general assumpsit for what he had done under it. Kidder v. Hunt, 1 Pick. 328. See, also, in support of the general proposition, that the party not in fault may recover advances made in faith of a special contract, Which the other party has abandoned, Giles v.
We do not think a demand was necessary in this case before suit. It is not like the ordinary case of money collected. Here the defendant, at the time of receiving the note, promised to apply the money, when collected, towards the farm contract. The money was collected before this suit was brought. It became, then, at the time of collection, the same as so much money paid towards this contract; and there was no more necessity of a formal demand for the money, than if the defendant had received it in any other manner.
Judgment affirmed.