Downey v. Riggs

• Decision Date: 11 May 1897
• Citation: 102 Iowa 88,70 N.W. 1091
• Parties: DOWNEY v. RIGGS.
• Court: Iowa Supreme Court

102 Iowa 88

70 N.W. 1091

DOWNEY

v.RIGGS.

Supreme Court of Iowa.

May 11, 1897.

Appeal from district court, Jefferson county; T. M. Fee, Judge.

Action at law to recover back money paid on a contract for the purchase of real estate. The trial court sustained a demurrer to defendant's answer, and a motion to strike his amended answer from the files. Defendant appeals. Reversed.Leggett & McKemey, for appellant.

Wilson & Hinkle, for appellee.

DEEMER, J.

According to the allegations of the petition, defendant on the 14th day of November, 1891, sold to the plaintiff certain real estate for the agreed price of $3,000, and on the same day executed a bond to convey, which recited that plaintiff had paid $100 down, and had executed his promissory note for the sum of $2,900, payable on the 3d day of January, 1892. This bond contains this concluding sentence: “Now, if the said Isaac Downey shall well and truly pay the full amount of said note, without any interest, then the said W. H. Riggs agrees to convey unto the said Isaac Downey, his heirs or assigns, by a good and sufficient deed, the above-described premises; but, should said note not be paid by the time it becomes due and payable, then this obligation is to be null and void; otherwise in full force and virtue in law.” At the time the note matured, plaintiff was sick and unable to pay the note; and defendant agreed to extend the time of the payment of the note until such reasonable time as plaintiff could go to Fairfield, make out the papers, and pay the money. On the _____ day of February, 1892, plaintiff notified defendant that he was ready to pay said note and receive his deed. Defendant at that time refused to stand by the contract and complete the sale, and informed plaintiff that he would not let him have the land; that he could have his note, but not the money,--and has ever since refused to receive his money and deliver the deed. Afterwards defendant, without any request from plaintiff, returned his note, through the mail, but refused, and still refuses, to return the $100. Defendant answered, admitting the execution of the bond, the payment of the $100, and the delivery of the note; that plaintiff was sick at the time the note matured, and that he agreed to give him further time, but avers that this extension was only until a particular Saturday, and that plaintiff failed to make the payment on this particular day, or at any other since that time; that on the 25th day of January, 1892, plaintiff informed the defendant that he was unable to carry out his contract, and asked defendant to give him back his note and repay the $100; that soon thereafter he returned the note, through the mail, but that he refused to return the money, for the reason that he believes plaintiff has abandoned his contract. He further averred that plaintiff has never tendered the balance of the purchase price, and says that plaintiff has at no time been ready or able to pay the same. All other allegations of the petition are denied. The demurrer was to this answer, and the principal ground of it was that the answer showed on its face that defendant had no right to retain the $100, for the reason that there was no provision in the contract for a forfeiture of the money paid in the event either party failed to comply therewith. After the ruling on the demurrer, defendant amended his answer, denying that there was any agreement for rescission, and further pleading that when plaintiff informed the defendant that he was unable to carry out the contract, and asked of defendant the return of the note and of the money paid, he (defendant) refused to rescind on the terms proposed; that defendant then proposed a rescission of the contract and a return of the note, upon condition that he (defendant) retain the money paid; that plaintiff at that time declined to accept the proposition, and no agreement was reached, but that afterwards, believing that plaintiff would accept the proposition, he (defendant) returned the note by mail, and kept the money; and that plaintiff accepted, and still retains, the note. Defendant therefore says that plaintiff is estopped from denying that he accepted the proposition, and is barred of his claim to the money. The motion was to strike this amendment for the reason that it presented no new issue.

The question raised by this appeal is whether a purchaser who has paid a part of the purchase price, and fails or refuses to carry out his contract, can recover what he has paid, when the contract itself does not provide for a forfeiture. It will be noticed that the answer denies the statement in the petition that defendant refused to carry out his contract, and specifically denies that defendant rescinded the contract. It states, in express terms, that defendant at no time consentedto a rescission, except upon condition that he should retain the $100. We have no occasion, therefore, to determine what the rights of the parties would be, had there been a rescission by the defendant because of plaintiff's failure to perform. On what theory is plaintiff entitled to recover? Where is the promise, either express or implied, to return...