Burton v. Wharton

4 Del. 296

• Court: Superior Court of Delaware
• Decided: July 5, 1845
• Status: Published

Opinion

By the Court.

—The principles of law which govern this case are not doubtful. It is true that a vendee of land having paid a deposit cannot put an end to the contract, and sue for the deposit, while the other party is ready and willing to go on with the contract. Nor in any case while the contract is unrescinded, and the other party ready to comply, can a suit be maintained for the deposit, nor for damages, without showing that he has done all that was required of him. But where the vendor has rescinded the contract, (and his positive refusal to comply is evidence of the rescinding the contract) the vendee may also treat the contract as rescinded, and sue for the deposit, without doing any thing further. So where the vendor has absolutely put it out of his power to comply with the contract, this is evidence of a rescinding of the contract, and the vendee may sue for the deposit. (Ros. Civ. Ev. 139-40-41-42.)

Layton, for plaintiff. Cullen, for defendant.

This is an action of assumpsit for money had and received, and not a special action on the agreement to purchase the land. The principle of this action is, that it is not according to equity and good conscience that the defendant shall retain the money. And is it conscionable that a man shall receive part payment for land which he contracts to sell, and then not only refuse to make the deed, but sell the land to another, and receive the purchase money, and then refuse to pay back the deposit 1

As to the act of limitation we shall leave it to the jury to say whether there is proved an acknowledgment by the defendant of a subsisting demand; and if they shall think so, it is evidence of a promise, and takes the case out of the act of limitation.

Nonsuit refused; and the case submitted to the jury.

Verdict for plaintiff.