Richards v. Allen , 17 Me. 296 ( 1840 )

The opinion of the Court was by

Weston C. J.

The contract between the parties in regard te the farm, was one, which being by parol, could not be enforced at law. It was however morally binding; and payments made by the plaintiff, on account of the purchase, could not be reclaimed, so long as the defendant was in no fault. But if he, without any justifiable cause, repudiated the contract, and refused to be bound by it, a right of reclamation would accrue to the plaintiff, to the extent required by the principles of justice and equity. The statute of limitations would not begin to run, until the cause of action accrued.

The terms of the contract do not appear in evidence ; but in the spring of 1837, the defendant recognized the contract as a subsisting one, acknowledged the payment of half the amount of the purchase, by bricks and a yoke of oxen, and promised in a few days to give the plaintiff or his son a deed of the farm, doubtless upon being paid or secured the remainder of the purchase money. On the 18th of January following, he conveyed the farm to a third person. This was putting an end to the contract, by depriving himself of the power to fulfil it. Was he justified in this course by any act or failure on the part of the plaintiff? Nothing of this kind was offered in proof by the defendant, except the declarations made by the plaintiff to the witness, Dickey. That was a casual conversation, giving no authority to the witness to make any communication to the defendant. The plaintiff cannot thereby necessarily be understood to have waived his rights. He stated, that he had no interest in the land, and that the defendant might convey it to w'hom he pleased. This was true, if understood, as it may be, of legal interest on the oue hand, and of legal power on the other. The testimony of Dickey therefore, if received, might, not conclusively affect the merits of the cause, or justify the conveyance made by the defendant, without subjecting him to a right of reclamation by the plaintiff.

It may be contended, that this right could not be exerted, until the plaintiff had first tendered to the defendant the remainder of the purchase money and thereupon demanded a deed. This may be true, if the defendant had not, by his owm act, deprived himself of the power of fulfilment. This excuses the useless ceremony of tender and demand, which might otherwise have been essential to the maintenance of the action. Newcomb v. Brackett, 16 Mass. R. 161.

But the plaintiff’s claim must be limited to what is just and equitable, under all the circumstances. He had made some payments ; but he had enjoyed the farm for eighteen or twenty years. The jury should have been permitted to take this into consideration, even without an account in offset, as it was necessarily connected with the plaintiff’s claim, and was of a character to affect and qualify it. This not having been done, we sustain the exceptions, and grant a new trial.