Way v. Cutting

17 N.H. 450

• Court: Superior Court of New Hampshire
• Decided: December 15, 1845
• Status: Published

Opinion

Parker, C. J.

We are of opinion that this action cannot be maintained. The contract was entire, and has never been rescinded.

This case cannot be distinguished from that of Miner v. Bradley, 22 Pick. 457, unless it be in the fact that the contract there related to personal property, and the vendee could maintain an action upon it for the breach. It may be that here the plaintiff cannot maintain an action on the contract, there being no writing between the parties.

If the result would be that the plaintiff was without remedy otherwise, we should be inclined to consider this case an exception to the general rule, for that reason, and to hold that the plaintiff could recover a proportionate part of the purchase money. 17 Maine 296, Richards v. Allen. But as there has been a part performance by the defendant, the plaintiff may have relief in equity, if the defendant has failed to convey all that he contracted to convey and was paid for. Plaintiff nonsuit.