White v. Wood , 15 Ala. 358 ( 1849 )

CHILTON, J..

The plaintiff in error, having paid Wood $150, in part performance of his agreement to pay him $700, for the land, was entitled, upon their mutual agreement to rescind the contract, to have the amount paid, refunded him, unless he waived his right in some way in the negotiation. The proof shows, that when the contract was rescinded by the parties, nothing was said about the amount paid by the plaintiff to the defendant.

The rule is, that when contracts are rescinded, in the absence óf a controlling agreement, the parties are to be restored to their former rights, and placed in the same situation they occupied before the agreement was made. Conner v. Henderson, 15 Mass. Rep. 319; Griffith v. Fred. Co. Bank, 6 Gill & Johns. 424; Pharr & Beck v. Batchelor, 3 Ala. R. 237; Griggs v. Woodruff et al., 14 Ala. Rep. 9. In the case before us, there was some proof adduced of previous conversation between the plaintiff, and the agent of the defendant, representing the $150 paid, from which the jury might infer, in the absence of countervailing proof, that the plaintiff consented to -abandon his right to recover back the money he had paid; but this proof was for the jury to weigh, and the court could not give it such effect, as to. require the plaintiff to prove a subsequent express contract to repay, on the part of the defendant.

If, as we have said, the parties, in rescinding the contract, made no agreement respecting the amount theretofore paid, in part performance of it by the plaintiff, the law implies a promise on the part of the defendant, to refund it. If however, the jury should come to the conclusion, that the previous negotiation between the agent of the defendant and the plaintiff, and Standifer, that the defendant should execute his note to Standifer for $50, and that he should retain the $100 as profits, entered into and formed part of the contract of rescission, then the plaintiff is not entitled to recover. This is clearly the law, as applicable to the case, and the charge of the court denying the plaintiff’s right to recover, unless he had shown an express promise on the part of the defendant to repay the $ 150, is in conflict with it. It was not incumbent on the plaintiff to prove an express promise to refund, by either positive or circumstantial testimony, as the charge assumes.

Let the judgment be reversed, and the cause be remanded.