Helm v. Rone

• Decision Date: 16 June 1914
• Docket Number: Case Number: 3443
• Citation: 43 Okla. 137,1914 OK 279,141 P. 678
• Parties: HELM v. RONE.
• Court: Oklahoma Supreme Court

1914 OK 279

141 P. 678

43 Okla. 137

HELM v. RONE.

Case Number: 3443

Supreme Court of Oklahoma

Decided: June 16, 1914

Syllabus

¶0 VENDOR AND PURCHASER--Breach of Contract--Recovery of Money Paid. Where a vendee pays money in part performance of an executory contract of sale and fails to perform it, he cannot recover of the vendor the money so paid.

Error from Superior Court, Oklahoma County; Edward D. Oldfield, Judge.

Action by Rachel Helm against John B. Rone. Judgment for defendant, and plaintiff brings error. Affirmed.

Taft & Vickery, for plaintiff in error

Ames, Chambers, Lowe & Richardson, for defendant in error

TURNER, J.

¶1 The record discloses that on July 5, 1907, defendant in error was the owner of certain real estate in Oklahoma City, and on that date entered into a written contract with plaintiff in error to sell the same to her. She paid $ 1,000 on the purchase price, and agreed to pay $ 2,775 on July 5, 1908; the deed to be put in escrow and delivered to her on payment of that sum. The contract provided that time was the essence of the contract. Pursuant thereto the purchaser took possession of the property and collected the rents, but failed to pay the $ 2,775 as agreed. Thereafter defendant took possession of the property and sold it to another, whereupon plaintiff sued to recover the $ 1,000 paid as stated. Defendant, up to the time of the breach, was ready, able, and willing to perform his part of the contract. The trial court was right when it held that plaintiff could not recover. The rule is, without exception, that where a party advances money in part performance of an executory contract of sale, and afterwards breaches his contract, he cannot recover the money paid. In Hansbrough v. Peck, 72 U.S. (5 Wall.) 497, 18 L. Ed. 520, the material facts are substantially the same as here. There the court said:

"And no rule in respect to the contract is better settled than this: That the party who has advanced money, or done an act in part performance of the agreement, and then stops short and refuses to proceed to its ultimate conclusion, the other party being ready and willing to proceed and fulfill all his stipulations according to the contract, will not be permitted to recover back what has thus been advanced or done. Green v. Green, 9 Cow. [N.Y.] 46; Ketchum v. Everton, 13 Johns. [N.Y.] 364 ; Leonard v. Morgan, 6 Gray [Mass.] 412; Haynes v. Hart, 42 Barb. [N.Y.] 58. The same doctrine has been repeatedly applied by the courts of Illinois, the state in which this case arose. Chrisman v. Miller, 21 Ill. 227, and cases referred to in the argument."

¶2 In Green v. Green, supra, in the syllabus it is said:

"To warrant a recovery as for money had and received, paid under a special contract (e. g., a contract to convey land), a strict performance must be shown by the plaintiff, the same as if he had sued on the special contract itself, unless

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