Bedell v. Tracy
| Decision Date | 26 May 1893 |
| Citation | 26 A. 1031,65 Vt. 494 |
| Parties | D. H. BEDELL v. E. O. TRACY, SURVIVING PARTNER |
| Court | Vermont Supreme Court |
GENERAL TERM, 1892
Assumpsit. Pleas, the general issue and statute of limitations. Trial by jury at the December term, 1891 THOMPSON, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. The case appears in the opinion.
Judgment is reversed and the cause remanded for a new trial.
J K. Darling for the defendant.
Geo. M. Powers and P. K. Gleed for the plaintiff.
Before: ROSS, CH. J., ROWELL, TYLER AND MUNSON, JJ.
The defendant is used as the surviving partner of J. P. & E. O. Tracy. The action is assumpsit, upon the common counts and one special count alleging that on the 14th day of June, 1882, the plaintiff entered into a contract with the Tracys whereby they agreed to deed to him a certain saw mill and appurtenances, upon the receipt of two hundred dollars, and a mortgage back securing the payment of thirteen hundred dollars; and that he agreed to purchase the same on these terms; that he paid them the two hundred dollars, entered upon the premises and made large repairs; that they refused to deed the premises, and on June 13, 1883, entered upon the premises, ousted the plaintiff, and thereby deprived him of the benefit of his payment, and his expenditures, to his damage. The defendant pleaded the general issue, statute of limitations, and gave notice of special matter in defence. On the trial, the plaintiff sought to recover a payment of $ 175, of $ 200, and for expenditures upon the mill for repairs and adding a new water wheel. The contract and arrangement between the plaintiff and the Tracys rested in parol. The defendant seasonably excepted to any oral testimony to establish the same, and especially excepted to the charge of the court upon the right of the plaintiff to recover the $ 175. To understand fully the force of these exceptions, it becomes necessary to state the substance of the plaintiff's testimony. The Tracys held an overdue mortgage on certain premises, including a saw mill, in December, 1881, which were then in the possession of the mortgagor. The plaintiff's testimony tended to show that during that month he made an arrangement with them by which they promised that if he could arrange with the mortgagor so that he could go into possession of the property, they would sell the property to him at a price that would be satisfactory, and allow him towards that price whatever he should pay the mortgagor to obtain possession; that acting under this arrangement, on January 17, 1882, he obtained from the mortgagor a lease of the property by paying him $ 175. A copy of the lease was put into the case. The lease was for one year, at the rent of $ 475, with the right to have it extended for another year at the rent of $ 500. The plaintiff paid down $ 175. The lease gave the plaintiff the right to purchase the premises by paying the defendants' mortgage, and one other claim which rested on the premises. If he purchased, the rent, except the $ 175, was to go to pay the mortgage and other claim. In that case the mortgagor was to retain the $ 175. If he did not elect to purchase, the $ 175 was to be applied on the first year's rent. If the rent was not paid as it became due, the mortgagor had the right to re-enter and take possession of the premises. The plaintiff did not elect to purchase, failed to pay the rent as it fell due, and the mortgagor reentered August 7, 1883, took possession of the premises, and then surrendered them to the defendants, as mortgagees. It was not claimed that the $ 175 paid the mortgagor, ever came to the defendants, nor was there any testimony tending to show that it ever enured to their benefit in any way. The plaintiff's testimony tended to show, and the jury have found in accordance with his testimony, that on June 14, 1882, he made an oral contract with the Tracys by which he purchased and they sold him the premises for the sum of $ 1,775, and that the $ 175 paid the mortgagor was considered and treated as a payment of so much towards the premises; that he then paid $ 95, and soon after paid $ 105 more, and was to pay another $ 200 with interest on the $ 1,400, when the Tracys got rid of the interest of the mortgagor; and they were then to deed to him, and he was to mortgage back to secure the payment of the remainder of the purchase money. The defendant admitted an oral trade, but denied that the $ 175 was to be considered a payment towards the premises, and claimed that the sale was for $ 1,600, that the plaintiff was to pay $ 500, before the deed was to be given, which he never did nor offered to do. The plaintiff entered into possession of the premises under his lease from the mortgagor, and remained in possession until August 23, 1882, when he bargained the premises to A. A. Caldwell and gave him a bond for a deed. Caldwell took possession of the premises and remained in possession as a purchaser from the plaintiff until August 7, 1883, when the mortgagor took possession under the lease for condition broken, and surrendered possession to the Tracys as mortgagees, to whom he attorned. Under this contract between the plaintiff and Caldwell, the plaintiff made the repairs and expenditures upon the mill for which he claimed to recover. The parties were at variance in regard to which had failed to perform the oral agreement for the sale of the premises, and in some other respects, which the jury have solved in favor of the plaintiff. The plaintiff did not claim that he had kept and performed the terms of the lease from the defendants' mortgagor, nor did he deny the mortgagee's right of re-entry. It does not appear that the plaintiff ever paid any one any rent under the lease except the $ 175. These are the facts which were either uncontroverted, or there was evidence tending to establish, material to the consideration of the exceptions.
I. The contract was executory, unwritten, and related to real estate. No action of law nor in equity could be maintained upon the naked contract, either to enforce it or to recover damages for non-performance of its provisions. The contract was not unlawful, but its enforcement is forbidden by statute. R. L. 981. Meach v. Stone & Perry, Admrs., 1 D. Chip. 182: Hibbard v Whitney, 13 Vt. 21. Where possession has been given and taken of the premises and the contract so far performed that it would be a fraud upon the purchaser to deny specific performance, equity will compel such performance. Sutton v. Estate of Sutton, 13 Vt. 71. Payment of the purchase money is not such part performance. Buck v. Pickwell, 27 Vt. 157; Fitch v. Burk, 38 Vt. 683; Sterling v. Baldwin, 42 Vt. 306 at 309. Such an oral agreement conveys no interest in the land. Whitcher v. Morey, 39 Vt. 459. Even when there is a tender of conveyance unaccepted it does not entitle the vendor to maintain an action for the price. King v. Smith, 33 Vt. 22. When the conveyance is made and accepted, in fulfillment of such a contract, an action lies for the price. Roberts Digest, 339. pl. 50 and cases cited. When the purchaser has paid a part of the price and tenders full performance, and the vendor on proper demand refuses to perform, the purchaser may recover the money paid with interest, because it is money in the vendor's hands belonging to the purchaser, for which he has received and the vendor paid no consideration, through the vendor's refusal to perform. But if the vendor is ready to perform, no recovery of the price, or of part of the price paid, can be had. Cobb v. Hall, 29 Vt. 510, 33 Vt. 233; Shaw v. Shaw, 6 Vt. 69; Smith v. Smith, 14 Vt. 440. The jury under the charge have found the parol contract as claimed by the plaintiff and that he tendered performance and the Tracys refused to perform. These facts entitle the plaintiff to recover the $ 200 with interest, which he had paid towards the purchase. It was admissible for him to prove these facts, because they showed how this money belonging to the plaintiff came to be in the hands of the Tracys. Such recovery is not upon the parol contract for the sale of real estate, but for money had and received by the vendor, for which he returned no consideration through his refusal to perform the contract. The right of action arose upon the refusal of the defendant to perform the unwritten contract. This eliminates any question of the statute of...
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