Hurley v. Anicker

• Decision Date: 20 July 1915
• Docket Number: 4498. [a1]
• Citation: 151 P. 593,51 Okla. 97
• Parties: HURLEY v. ANICKER.
• Court: Oklahoma Supreme Court

151 P. 593

51 Okla. 97

HURLEY v. ANICKER.

No. 4498. ^[a1]

Supreme Court of Oklahoma

July 20, 1915

Syllabus by the Court.

A party who has contracted to buy land and has paid 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 he has paid, or for what he has done.

(a) But, where a party has made a payment under a contract to buy land, and has failed to make further payments according to the contract, and the contract has been mutually rescinded such purchaser may recover the money so paid in part performance.

(b) And in such last-mentioned case, if the purchaser is responsible for the breach and failure to make the other payments, the other party, in a suit to recover back from him the payment he has received, may recoup any actual damages he may have suffered because of the purchaser's failure to fully perform.

Commissioners' Opinion, Division No. 1. Error from Superior Court, Muskogee County; Farrar L. McCain, Judge.

Action by Homer W. Hurley against William J. Anicker. Judgment for defendant, and plaintiff brings error. Reversed and remanded with directions.

J. W Anthony, Malcolm E. Rosser, and Preston C. West, all of Muskogee, for plaintiff in error.

Roach & Bradley, of Muskogee, for defendant in error.

BREWER C.

On October 17, 1910, the parties to this suit entered into a contract for the purchase of 200 acres of farming land. By the terms of the contract Hurley was to, and did, pay $2,000 in cash, and was to pay $2,400 in 30 days thereafter, and the balance on January 1, 1911. The contract provided that Anicker was to furnish Hurley with an abstract of title "which shall, after examination, be returned to him and held by him until all notes or payments under this contract are paid." On October 22, 1910, Anicker executed a mortgage for $1,800, which covered a portion of the land sold, and which was payable on or before January 15, 1911. Upon receipt of the abstract, showing this mortgage, Hurley declined to make any further payments under the contract, and therefore did not pay the $2,400 to be paid in 30 days after the date of the contract; nor did he pay the balance of the purchase price on or before January 1, 1911. This suit was brought by Hurley for money had and received in the sum of $2,000, the amount of money paid at the execution of the contract.

In the petition it is alleged that "* * * defendant rescinded said contract, but refused and still refuses to return the said sum." Defendant says in his answer, after alleging that Hurley had breached his contract by a failure to make the payments provided therein within the dates mentioned, "and that after January 1, 1911, on account of the breach of said contract by the plaintiff, the defendant rescinded the same."

At a trial of the case Hurley testified that Anicker notified him that he rescinded the contract, and that he had so treated it as rescinded and at an end. The defendant offered no testimony, but interposed a demurrer to that offered by plaintiff, which was sustained by the court, and judgment rendered that plaintiff take nothing, and that his suit be dismissed.

Before proceeding to a discussion of any of the points in this case it is important to remember and bear in mind that the petition herein alleges a rescission of the contract; that the defendant specifically and formally admits that the contract was rescinded; and that the evidence in the case shows the same, and is not contradicted. But for the fact that these parties mutually abandoned and rescinded the contractual relation existing between them, the plaintiff would have no standing in court to recover back the payment made in part performance of the contract, if in default in the further performance of the same. Whether or not the placing of the mortgage on a part of the land contracted to be sold justified the plaintiff in refusing to make further payments need not be considered here.

This court, in the case of Helm v. Rone, 43 Okl. 137, 141 P. 678, has quoted with approval from the case of Hansbrough v. Peck, 5 Wall. 497, 18 L.Ed. 520, the following:

"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.) 359, 7 Am. Dec. 384; 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. 236, and cases referred to in the argument."

This doctrine was reannounced in the case of Snyder v. Johnson, 144 P. 1035.

It may be remarked that the Hansbrough Case, supra, is one of the leading cases in this country, and has been widely cited. We call special attention to the qualifying clause in the quotation given, " the other party being ready and willing to proceed and fulfill all his stipulations according to the contract. " These were not idle words placed in the rule by the Supreme Court of the United States, but are an essential part of the rule announced, and by giving due weight to which it will be seen, when coming to a consideration of the case at bar, where the contract had been abandoned and mutually rescinded, has the effect of differentiating and taking this case out of the rule of Helm v. Rone and Snyder v. Johnson, supra--indeed, in the last-named case. The doctrine contended for here was recognized in the body of the opinion in the following language:

"It is contended in the brief of plaintiff in error that, after default was made by the vendee, there was a mutual rescission of the contract, and for that reason the defendant would be liable

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