Norris v. Letchworth
| Citation | 152 S.W. 421,167 Mo.App. 553 |
| Parties | EDWARD NORRIS, Respondent, v. CHARLES P. LETCHWORTH, Appellant |
| Decision Date | 31 December 1912 |
| Court | Court of Appeals of Kansas |
Appeal from Morgan Circuit Court.--Hon. John M. Williams, Judge.
AFFIRMED.
Judgment affirmed.
Sangree & Bohling, A. L. Ross and H. E. Neville for appellant.
(1) The court erred in overruling appellant's motion in arrest of judgment. The petition does not state facts sufficient to constitute a cause of action. It shows upon its face that the respondent was in default and not the appellant. Webb v Steiner, 113 Mo.App. 482; Crews v. Garneau, 14 Mo.App. 505; Davis v. Real Estate Co., 115 Mo.App 327; Bishop on Contracts, Secs. 834, 1418; Felix v Bevington, 52 Mo.App. 403; Sanders v. Brock, 230 Pa. 609; Whittemore v. Darden, 9 App. D. C. 449; Rounds v. Baxter, 4 Me. 454; McKinney v. Harvie, 38 Minn. 18; Ketchum v. Evertson, 13 Johns. 359; Lawrence v. Miller, 86 N.Y. 131; Utter v. Stuart, 30 Barb. 20; Gallagher v. Dettelbach, 25 Ohio C. C. 342. All the authorities that we are able to find are to the effect that a purchaser under an executory contract to purchase real estate, when he is in default in making his payments without the consent or acquiescence of the vendor has not been mutually rescinded, cannot recover of the latter the amount he has paid on the contract in an action at law. The question that the petition does not state facts sufficient to constitute a cause of action was timely made by the motion in arrest. R. S. 1909, Sec. 1804. This question can be raised for the first time in this court. Paddock v. Somes, 102 Mo. 226; Hoffman v. McCracken, 168 Mo. 337; Hudson v. Calhoun, 193 Mo. 547.
Amos A. Knoop and Wray & McVey for respondent.
The motion in arrest was properly overruled. The petition alleges facts sufficient to entitle respondent to recover the amount paid by him less any damages sustained by appellant. Norris v. Letchworth, 140 Mo.App. 19; Yacht & Power Co. v. Busch, 143 F. 929; McDaniel v. Gray & Co., 69 Ga. 433; Blitch & Newton v. Edwards, 96 Ga. 606; Phelps v. Brown, 95 Cal. 512; Drew v. Pedlar, 87 Cal. 443; Cleary v. Folger, 84 Cal. 316. Appellant complains that there was no evidence offered in support of the allegation, that upon respondent's failure to make the final payment on January 1, that appellant on January 3 rescinded the contract. That question was not raised nor presented to the trial court and therefore is not available to appellant on appeal, even should the court determine that that was a necessary allegation to respondent's petition. The case was tried on the assumption that the allegations of respondent's petition were true, and having been tried on that theory will be disposed of on appeal the same way. Besides if appellant desired to raise that question he should have done so in the trial court by offering a demurrer to the evidence, none having been offered it is waived. Chaquette v. Railroad, 152 Mo. 257; Mooneyhan v. Cella, 91 Mo.App. 260.
OPINION
--Plaintiff sued to recover $ 500 paid defendant on the purchase price of a farm in Morgan county. The theory of the petition on which the action first went to trial was that defendant had breached the contract thereby giving plaintiff the right to rescind and to recover the money paid by him in part performance. Plaintiff was allowed to recover on this theory but on the appeal of defendant we held that since the evidence disclosed beyond question that plaintiff was at fault in not paying or offering to pay the remainder of the purchase money in the time and manner provided in the contract, he could not recover the money he had paid in part performance in an action founded on the contract. But that as it appeared in the evidence that the contract did not attempt to provide for a forfeiture nor to treat the down payment as liquidated damages and that defendant, in effect, had declared the contract rescinded immediately after the default of plaintiff, we further held that plaintiff, in a proper action, would be entitled to recover the sum he had paid in part performance, less the damages suffered by defendant on account of the breach, such damages to be measured by the difference between the contract price and the market value of the land on the date of the default. Accordingly we reversed the judgment and remanded the cause. Plaintiff then filed an amended petition in the circuit court in which he seeks to recover as upon an action for money had and received. The answer to this petition pleads the contract and plaintiff's breach, and by way of counterclaim, defendant, alleging that the difference in the contract price and the market value of the land at the time of the default was a sum greatly in excess of the down payment, prays judgment in the amount of such depreciation.
The only issue of fact contested at the trial was that relating to the value of the land on the date of the default. The evidence of plaintiff tended to show that such value exceeded the contract price and the evidence of defendant was to the effect that, owing to a general financial depression prevailing at that time, the market value of the land was much less than the contract price. This issue was submitted to the jury and was decided in favor of plaintiff. The verdict and judgment awarded plaintiff were for the full amount claimed in his petition. After unsuccessfully moving for a new trial and in arrest of judgment, defendant appealed.
In our former opinion we said:
The petition was amended and the cause was tried for the second time in conformity with this view of the law and it is quite clear that the object of defendant in prosecuting this appeal is to obtain, if possible, a reconsideration and reversal of that view. The rule is well settled and springs from the most elemental principles of justice that a party to a contract, himself at fault in its performance, cannot maintain an action for its rescission. To hold otherwise would be to allow a wrongdoer to take advantage of his own wrong. This rule has been recognized and applied in this State in a number of cases. [Felix v. Bevington, 52 Mo.App. 403; Crews v. Garneau, 14 Mo.App. 505; Webb v. Steiner, 113 Mo.App. 482, 87 S.W. 618; Davis v. Barada, 115 Mo.App. 327, 92 S.W. 113.] But it has no application to cases such as the present where the vendor having elected to rescind the contract on account of the default of the vendee, the latter, acquiescing in that action, sues to recover that portion of his performance of the contract in excess of the damages actually sustained by the vendor on account of his breach.
The cardinal rule in the assessment of damages for the violation of a contract is actual compensation to the injured party. Punitive damages are unknown to the law of private contracts and will not be awarded even when the parties stipulate for them. On what principle, then, may a vendor who has rescinded the contract on account of the vendee's default be allowed to retain punitive damages from the mere fortuitous circumstance that he has received money in excess of his damages paid by the vendee in part performance of the contract? If plaintiff had made no payment before default, defendant, in an action for damages brought after rescission, would have been limited in his recovery to compensation for his loss and that is all he should be entitled to retain out of the proceeds of plaintiff's part performance. The default of plaintiff afforded defendant a choice of remedies. He was not compelled to rescind the contract but could have recovered from plaintiff the amount due on the purchase price. He did not take this course but elected to rescind and to hold plaintiff for his damages. In so doing he voluntarily restricted himself to compensation for his actual loss and his present contention, which, in effect, is the assertion of a right to punitive damages, is inconsistent with that position.
A single illustration will serve to emphasize the injustice of defendant's contention. The purchase price of the land was $ 6700. Suppose plaintiff had paid all but $ 100 and then had breached the contract. He could not have maintained an action based on a purpose to rescind since he would not be allowed to found a cause on his own wrong or to deprive defendant of his choice of remedies, but after defendant had exercised his choice and had elected to rescind, would anyone have the hardihood to argue, in an action brought by plaintiff for money had and received, that defendant could not be compelled to return all of the purchase money paid in excess of just compensation for the loss he had sustained in consequence of the breach? The principle for application in such case is the same whether the part performance is ten or ninety per cent of full performance.
We are aware that authorities may be found and are cited in the brief of counsel for defendant that support his position, but we think the rule we have stated is the only one that can be harmonized with the demands of reason and justice and with the fundamental...
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