OPINION.
•FARRINGTON, J.
It is elementary that a plaintiff cannot sue on one cause of action and recover on another. One pleading an express contract will not be permitted to recover on one implied. [Canaday v. United Rys. Co., 134 Mo. App. 282, 114 S. W. 88; Michael v. Kennedy, 166 Mo. App. 462, 466, 148 S. W. 983; Walker v. Bohannon, 243 Mo. l. c. 137, 147 S. W. 1024.
[206]*206Although it is true, as stated by respondents, that after verdict every reasonable intendment is brought to aid the pleading assailed (Oglesby v. Railway Co., 150 Mo. 137, 37 S. W. 829; Farmers Bank v. Assurance Co., 106 Mo. App. 114, 124, 80 S. W. 299), we cannot hold that the pleadings in this case were predicated on an action for money had and received. Defendant did not so regard the action, and it is highly probable that this was never thought of until the case was appealed.
The petition standing alone, by the most liberal construction, might be construed as stating a cause of action for money had and received and the allegations as to the contract might be treated as inducement or as surplusage. [See Crigler v. Duncan,. 121 Mo. 1. c. 291, 99 S. W. 61; Stuyvaert v. Arnold, 122 Mo. App. 1. c. 426, 427, 99 S. W. 529; St. Louis Sanitary Co. v. Reed (Mo. App.), 161 S. W. l. c. 317; Richardson v. Drug Co., 92 Mo. App. l. c. 521.] However, the plaintiffs in their reply preclude us from giving their petition and their theory of the case that they can recover on the construction contended for, because in the reply they plead that the contract has not “ceased and determined” and that defendant is estopped from pleading that it had “ceased and determined.” The pleadings and all the evidence introduced by both sides treat the cause of action as one for breach of an express contract and deal with the case on the theory that damages are to be recovered, if at all, for such breach. The plaintiffs manifestly sought to recover a judgment on this theory and it was this theory that defendant resisted. The facts of the case may uphold a cause of action in indebitatus assumpsit, tut the theory on which the trial we are reviewing proceeded was that there had been a breach of an express contract for which plaintiffs sought damages, and it was unfair to the defendant, with the record in the condition it was, for the court to peremptorily instruct the jury to find [207]*207for the plaintiffs for a part of the recovery prayed in the first count of plaintiffs’ petition. The court erred in giving such an instruction. By statutory enactment (Sec. 186-5, R. S. 1909) parties litigant are to be protected by the court when it construes pleadings to secure them against being misled. In Hood v. Nicholson, 137 Mo. 400, 38 S. W. 1095, the Supreme Court in referring to the limits applicable to the liberal construction of pleadings, said that the courts would not, by construction, rob language of its plain and obvious meaning, to enable its author to relieve himself from a position of embarrassment where by its use he had voluntarily placed himself. The character of an action is determined from the averments of the petition. [Kellerman Contracting Co. v. Wrecking Co., 137 Mo. App. 392, 399, 118 S. W. 99; see, also, Huston v. Tyler, 140 Mo. l. c. 262 to 265, 36 S. W. 654, 41 S. W. 795.]
On examination of the contract hereinbefore set out it will be seen that it is an option contract and purely unilateral, the land owner obligating himself to convey on certain conditions, the proposed purchasers being under no obligation whatever to carry through the contract, and they had a perfect right to abandon it any time without incurring any liability. This is clearly shown by the last clause which is — “and no liability shall attach by this contract to either the first or second party.” This disposes of defendant’s counterclaim in which he attempted to recover damages for the breach of the contract. His rights are limited to the retention of any sums paid under the contract and nothing more, and his answer should embody this only. The second instruction given for plaintiffs is along this line and properly declared the law except as to the amount defendant would be entitled to retain, which should have been $1020- instead of $500 unless the $520 was -paid by the defendant as his sub scription to a railroad bonus.
[208]*208The plaintiffs’ petition in the first count states a cause of action for the recovery of money paid provided they could prove the facts there alleged, — that they were ready, willing and able to perform the contract at all times but that the defendant refused to make a deed conveying good title to the land. The second count states a cause of action predicated on the same facts and basing the claim for damages on the alleged enhanced value of the land. Plaintiffs’ right to recover on either count, however, is conditioned on their ability to show a readiness and willingness to perform the contract on their part and a refusal of the defendant to make a deed conveying good title.
In the case of Davis v. Barada-Ghio Real Estate Co., 115 Mo. App. 327, 338, 339, 92 S. W. 113, the court holds that in order for plaintiff to recover in this sort of action — “It was necessary to show further that Stephenson was ready and willing to perform the contract on his part and offered to do so.” It is held in that case that it rests upon the party suing and alleging a breach of the contract to prove as a condition precedent to recovery that he offered to comply with his part of the contract. “In a case like this” said the court in the case last cited, “the law requires the party seeking relief, whether vendor or vendee, to show he did his duty.” That case also holds that where land was mortgaged, since the owner did not therefore have a clear title, the proposed purchaser (the plaintiff) had a right to demand that the mortgage be paid off before he paid over the purchase price, and that it was not a sufficient answer for the owner to say that he intended to lift the mortgage with the purchase money. Under those circumstances, the plaintiff (the proposed purchaser) in order to recover for a’ breach of the contract must show that he actually tendered the purchase price' or offered to pay or that there was a waiver.
[209]*209It is the law as declared by the decisions in this State that in order for a defaulting purchaser to recover back the part of the purchase price paid he must show; that he was ready, willing and able, and offered to perform his part of the contract, and that the proposed vendor refused, or, in case the proposed 'purchaser fails to perform some part of his contract, in order for him to recover any portion of the purchase price already paid it must appear that the proposed vendor treated the proposed purchaser’s failure to perform as a forfeiture of the contract and as a rescission of the same.
The case of Crews v. Garneau, 14 Mo. App. 505, holds that earnest money cannot be recovered by one refusing to perform his part of the contract. To the same effect is the opinion in the case of Webb & Kinne v. Steiner, 113 Mo. App. 482, 48-9, 87 S. W. 618, in which many cases are cited as declaring this doctrine. The same rule is recognized in Norris v. Letchworth, 167 Mo. App. 553, 152 S. W. 421, where the court said (l. c. 557): "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.
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OPINION.
•FARRINGTON, J.
It is elementary that a plaintiff cannot sue on one cause of action and recover on another. One pleading an express contract will not be permitted to recover on one implied. [Canaday v. United Rys. Co., 134 Mo. App. 282, 114 S. W. 88; Michael v. Kennedy, 166 Mo. App. 462, 466, 148 S. W. 983; Walker v. Bohannon, 243 Mo. l. c. 137, 147 S. W. 1024.
[206]*206Although it is true, as stated by respondents, that after verdict every reasonable intendment is brought to aid the pleading assailed (Oglesby v. Railway Co., 150 Mo. 137, 37 S. W. 829; Farmers Bank v. Assurance Co., 106 Mo. App. 114, 124, 80 S. W. 299), we cannot hold that the pleadings in this case were predicated on an action for money had and received. Defendant did not so regard the action, and it is highly probable that this was never thought of until the case was appealed.
The petition standing alone, by the most liberal construction, might be construed as stating a cause of action for money had and received and the allegations as to the contract might be treated as inducement or as surplusage. [See Crigler v. Duncan,. 121 Mo. 1. c. 291, 99 S. W. 61; Stuyvaert v. Arnold, 122 Mo. App. 1. c. 426, 427, 99 S. W. 529; St. Louis Sanitary Co. v. Reed (Mo. App.), 161 S. W. l. c. 317; Richardson v. Drug Co., 92 Mo. App. l. c. 521.] However, the plaintiffs in their reply preclude us from giving their petition and their theory of the case that they can recover on the construction contended for, because in the reply they plead that the contract has not “ceased and determined” and that defendant is estopped from pleading that it had “ceased and determined.” The pleadings and all the evidence introduced by both sides treat the cause of action as one for breach of an express contract and deal with the case on the theory that damages are to be recovered, if at all, for such breach. The plaintiffs manifestly sought to recover a judgment on this theory and it was this theory that defendant resisted. The facts of the case may uphold a cause of action in indebitatus assumpsit, tut the theory on which the trial we are reviewing proceeded was that there had been a breach of an express contract for which plaintiffs sought damages, and it was unfair to the defendant, with the record in the condition it was, for the court to peremptorily instruct the jury to find [207]*207for the plaintiffs for a part of the recovery prayed in the first count of plaintiffs’ petition. The court erred in giving such an instruction. By statutory enactment (Sec. 186-5, R. S. 1909) parties litigant are to be protected by the court when it construes pleadings to secure them against being misled. In Hood v. Nicholson, 137 Mo. 400, 38 S. W. 1095, the Supreme Court in referring to the limits applicable to the liberal construction of pleadings, said that the courts would not, by construction, rob language of its plain and obvious meaning, to enable its author to relieve himself from a position of embarrassment where by its use he had voluntarily placed himself. The character of an action is determined from the averments of the petition. [Kellerman Contracting Co. v. Wrecking Co., 137 Mo. App. 392, 399, 118 S. W. 99; see, also, Huston v. Tyler, 140 Mo. l. c. 262 to 265, 36 S. W. 654, 41 S. W. 795.]
On examination of the contract hereinbefore set out it will be seen that it is an option contract and purely unilateral, the land owner obligating himself to convey on certain conditions, the proposed purchasers being under no obligation whatever to carry through the contract, and they had a perfect right to abandon it any time without incurring any liability. This is clearly shown by the last clause which is — “and no liability shall attach by this contract to either the first or second party.” This disposes of defendant’s counterclaim in which he attempted to recover damages for the breach of the contract. His rights are limited to the retention of any sums paid under the contract and nothing more, and his answer should embody this only. The second instruction given for plaintiffs is along this line and properly declared the law except as to the amount defendant would be entitled to retain, which should have been $1020- instead of $500 unless the $520 was -paid by the defendant as his sub scription to a railroad bonus.
[208]*208The plaintiffs’ petition in the first count states a cause of action for the recovery of money paid provided they could prove the facts there alleged, — that they were ready, willing and able to perform the contract at all times but that the defendant refused to make a deed conveying good title to the land. The second count states a cause of action predicated on the same facts and basing the claim for damages on the alleged enhanced value of the land. Plaintiffs’ right to recover on either count, however, is conditioned on their ability to show a readiness and willingness to perform the contract on their part and a refusal of the defendant to make a deed conveying good title.
In the case of Davis v. Barada-Ghio Real Estate Co., 115 Mo. App. 327, 338, 339, 92 S. W. 113, the court holds that in order for plaintiff to recover in this sort of action — “It was necessary to show further that Stephenson was ready and willing to perform the contract on his part and offered to do so.” It is held in that case that it rests upon the party suing and alleging a breach of the contract to prove as a condition precedent to recovery that he offered to comply with his part of the contract. “In a case like this” said the court in the case last cited, “the law requires the party seeking relief, whether vendor or vendee, to show he did his duty.” That case also holds that where land was mortgaged, since the owner did not therefore have a clear title, the proposed purchaser (the plaintiff) had a right to demand that the mortgage be paid off before he paid over the purchase price, and that it was not a sufficient answer for the owner to say that he intended to lift the mortgage with the purchase money. Under those circumstances, the plaintiff (the proposed purchaser) in order to recover for a’ breach of the contract must show that he actually tendered the purchase price' or offered to pay or that there was a waiver.
[209]*209It is the law as declared by the decisions in this State that in order for a defaulting purchaser to recover back the part of the purchase price paid he must show; that he was ready, willing and able, and offered to perform his part of the contract, and that the proposed vendor refused, or, in case the proposed 'purchaser fails to perform some part of his contract, in order for him to recover any portion of the purchase price already paid it must appear that the proposed vendor treated the proposed purchaser’s failure to perform as a forfeiture of the contract and as a rescission of the same.
The case of Crews v. Garneau, 14 Mo. App. 505, holds that earnest money cannot be recovered by one refusing to perform his part of the contract. To the same effect is the opinion in the case of Webb & Kinne v. Steiner, 113 Mo. App. 482, 48-9, 87 S. W. 618, in which many cases are cited as declaring this doctrine. The same rule is recognized in Norris v. Letchworth, 167 Mo. App. 553, 152 S. W. 421, where the court said (l. c. 557): "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. [Authorities cited.] 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.” This principle is emphasized by Ellison, J., in his concurring opinion in that ease.
[210]*210In the ease at bar there is evidence tending to show that the market price of the land was several thousand dollars less' when the breach occurred than the price named in the contract.
¥e are of the opinion that if plaintiffs can make a case showing that they were ready, willing and able, and offered to perform their part of the contract and that defendant refused to carry out his part of the contract, or, although plaintiffs did not fully perform their part of the contract or offer to fully perform it, and the defendant treated such non-performance as a rescission, plaintiffs would then have a cause of action for money had and received and defendant could recover for any damage suffered by him on account of the plaintiffs ’ default. If, on the other hand, it is shown that the defendant was at all times ready, willing and able to perform his part of the contract and to convey, notwithstanding plaintiffs ’ default in making payments at stipulated times, then plaintiffs cannot recover either for breach of the contract or for money had and received. The case of Norris v. Letchworth, 140 Mo. App. 19, 124 S. W. 559, is an authority for permitting the plaintiffs to so amend their petition as to make it clearly state a cause of action as for money had and received. [See, also, Norris v. Letchworth, 167 Mo. App. 553, 152 S. W. 421; Clifford Banking Co. v. Donovan Com. Co., 195 Mo. l. c. 288, 289, 94 S. W. 527; Corrigan & Waters v. Brady, 38 Mo. App. 649.
The following is an expression only of the views of the writer of this opinion: When a contract is entered into, a party thereto has under the law two courses, one, to perform, the other, to breach the contract and answer in damages to the other party. That which gives stability to any civil contract is. the preference of the parties thereto to perform rather than to answer in damages under the law. The courts refuse to permit a party to a contract to be penalized for a breach, and this, even though the contract by special [211]*211provision fixes a penalty. In any case where either the vendor or the vendee seeks to hold , the other for damages for breach of the contract, the measure of damages is the actual loss sustained. I do not believe that the reason given in the cases cited in this opinion —to-wit, that one cannot base a cause of action on his own wrong or on his own breach of a contract — is a sound reason for denying a defaulting .purchaser to recover back all the purchase price1 paid less the damages his breach has caused the other party. His wrong extends only to the amount of actual loss the other party has sustained, and when he has paid that amount, under the law his wrong is requited; and therefore it seems to me that any suit brought for that amount over and above the actual damage to the other party is not based on his wrong because his wrong has been requited, and in my judgment he should be permitted to bring an action for this money which was received by the other party for which said other party suffered no wrong or damage or gave any consideration, and if he be permitted to retain it, whatever the reason may be that is given therefor, it" leads to nothing short of recognizing a penalty, and this, to my mind, is contrary to the equitable principles that are enforced in actions for money had and received. However, I must agree with my associates that the law of this State as heretofore declared and which we must follow is not in accord with my views expressed in this paragraph.
For the reasons stated in the opinion in which we all agree as to the state of the law, the judgment is reversed and the cause remanded.
Sturgis, J.. concurs. Robertson, P. J., concurs in the result.