Williamson v. Moore

2 Disney (Ohio) 30

• Court: Ohio Superior Court, Cincinnati
• Decided: January 15, 1858
• Docket: No. 7,397
• Status: Published

Opinion

Storer, J.

To sustain their demurrer it is claimed it is shown by the petition that the plaintiff’s assignor was in fault for the non-performance of his contract, when this action was brought, and can not, therefore, require the defendants to perform their part of the agreement. We have been referred to many familiar cases, where it has been held “that a person who has refused or neglected to perform the condition on his part, on which the title was to rest, can not recover any payments he may have made.” We admit the rule as found in 9 Cowan, 46; 13 Johns. 359; 20 Johns. 23; 1 McLean, 242; 5 Ohio, 375, 380; 5 Barb. 414; Story’s Equity, sec. 109; Sugden on Vendors, 245; 12 Ohio, 193. There must be a performance, or a tender of performance, before either party can hold the other; but if, when the period of performance arrives, the party bound to convey has put it out of his power to perform, the other party is excused from any further duty, either by payment or an offer to pay. The law requires no one to do a vain thing, and when it is evident the person, to whom the offer to perform is to be made, can not comply with his obligations, but, on the contrary, the other party has, by his own acts,” prevented a compliance, there need be no tender, g.s that ceremony would be a mere form. Co. Lit. 206.

In this case, it does not appear that time was not made the essence of the contract, and without deciding whether, under the state of facts presented, a specific performance would be decreed or not, it is evident that Barr, if he had offered to pay the balance due on the notes, in May, 1853, could not have obtained a title to the property described in the contract, and could not, therefore, be regarded as in default.

But it is admitted that the defendants have rescinded the contract with Barr, so far as they were able, and now claim to hold the property or the proceeds as their own. Th.e plaintiff, therefore, must be placed “ in statu, quo,” and is entitled to be restored to all he has lost. A court of equity will not rescind a contract for the purchase of lands, unless the party asking the decree places the other in the same condition, as he was before the contract was made, and we must apply the same rule to this case. 5 Ohio, 386, Reed v. McGrew: 6 Grill and John. 424, Griffith v. Fred. Co. Bank; 1 Denio, 69 ; Mason v. Bovet.

With these views of the law of the ease, we must hold the plaintiff has made out a cause of action. Whether it will enable him to recover one-third of the stock taken by the defendants, deducting the amount, with interest, which Barr was bound to pay; or whether he is allowed to recover only the sums paid under the contract to the defendants and Taylor, by himself we need not now determine.

The demurrer is, therefore, overruled, and the defendants have leave to answer.

Demurrer overruled.