
    Thomas Sims vs. Thomas Hutchins, use of Mordecai Lewis.
    Money paid in part performance of a parol contract for the purchase of a tract of land, can only be recovered back on the unwillingness or inability of the vendor to convey, or a mutual abandonment of the contract.
    That a contract for the purchase of land was not in writing, may be good ground of defence when specific performance of the contract is sought against the vendor, for whose benefit the statute requiring such contracts to be in writing, was passed ; but if the vendor is willing to perform, the price paid cannot be recovered back.
    Contracts by parol for land are, it seems, voidable merely, not void.
    H., by a parol contract entered into in January, 1840, agreed to buy of S. a tract of land for $ 650, one half of which was to be paid on the first of March ensuing, when the contract was to be consummated and possession delivered. H. at the time of the contract, in part performance, paid S. fifty dollars, but on the first of March was unable to pay the balance, and refused to complete the contract, though S. was willing to do so on his part; there being no evidence that S. assented to a rescission of the contract, it was held, that H. could not recover back from him the fifty dollars, paid;
    In error from the circuit court'of Holmes county; Hon- Morgan L. Fitch, judge.
    Thomas Hutchins, who sued for the use of Mordecai Lewis, brought an action before W. L. Morris, Esq., a justice of the peace of Holmes county, against Thomas Sims, to recover the sum of fifty dollars, for money had and received. The magistrate awarded judgment against Sims, and he appealed to the circuit court.
    At that court a trial was had, which also resulted in a verdict for Hutchins.
    At the trial the plaintiff’s usee called Hutchins the nominal plaintiff, who stated that some time in January, 1842, he made a contract of purchase with Sims, by which he was to give Sims $650 for the tract of land on which Sims resided; one half to be paid on the first of March, when Sims was to deliver possession ; that he was to live with Sims up to that time, when Sims was to move to another tract of land; that he paid Sims the money sued for in this action, about fifty dollars, in part performance of the contract, and also a horse valued at $100; but on the first of March he was unable to make the balance of the payment then due; that Sims was ready and willing to move, and deliver him possession on the money being paid or secured; but that he declined doing either, and left the premises ; that he and Sims mutually agreed to rescind the contract; that is, that he the witness agreed to rescind, but that Sims did not say anything.
    James Scouyers stated that he was present when Sims was to deliver possession to Hutchins of the place; that from what was then said between the parties, he understood that Sims was perfectly willing to comply with his contract, on the payment hy Hutchins of the balance of the amount agreed to be paid then ; that Hutchins refused to make the payment, stating that he had the money, but had made a bad bargain; that Sims, in contemplation of giving Hutchins possession on the first of March, had been at a good deal of expense and trouble in fitting up a house for himself into which to remove; that Sims was always willing to comply with his part of the contract, and even indulge Hutchins for the money if he would give his note, and offered to go with him to Lexington to have a deed executed; that Sims did not agree to any rescission or abandonment of the contract.
    The court instructed the jury that unless they believed that both parties mutually agreed to rescind and abandon the contract, Hutchins was not entitled to recover.
    The defendant moved for a new trial; which, being refused, he prosecuted this writ of error.
    Brooke, for plaintiff in error.
    Although the amount in controversy here is small, the principle involved is important, and it is hoped will justify an examination of the authorities. The principle contended for by the plaintiff in error is, that, although a parol contract for the sale of land cannot be enforced at law, yet if a party pays money on such contract, he cannot recover it back on his own neglect or refusal to complete it. The authorities on this are conclusive. See 12 Johns. R. 450; 2 J. J. Marshall, 38; Comyn on Cont. 40, in note; 4 Kent, 240, 467. The testimony of Scouyers shows, that Sims was always ready and anxious to complete his contract, by making a deed and delivering possession, and that he had suffered inconvenience and loss in preparing to remove ; he also states, that he was present at the time spoken of by Hutchins, and that Sims did not agree to rescind, but insisted on performance.
   Mr. Chief Justice ShaRKey

delivered the opinion of the court.

This suit was instituted before a justice of the peace, for money had and received. It seems that Hutchins by a parol contract, entered into in January, 1840, agreed to buy of Sims a tract of land for six hundred and fifty dollars, one half of which was to be paid on the first of March following, when the contract was to be consummated and possession delivered. Hutchins, in part performance, paid Sims fifty dollars, but on the first of March was unable, as he states, to pay the balance, and refused to complete the contract, though Sims was very willing to do so on his part. He says that Sims did not expressly agree to a rescission of the contract, though he said nothing when informed by Hutchins of his intended abandonment. Another witness states that Sims was willing and anxious to comply on his part, but the vendee refused to make the payment, on the ground, as stated by him, that he had made a bad bargain, although he had the money. Sims was even willing to give time for payment, and offered to go to Lexington to execute a deed. This witness also states, that Sims did not agree to rescind the contract.

On this state of the evidence, it is impossible to conclude that the contract was rescinded by mutual consent, either express or implied, and without such mutual rescission it must be clear that the amount paid in part performance, cannot be recovered back. The only grounds for such a recovery are the unwillingness or inability of the vendor to convey according to contract, or a mutual abandonment of the contract. That the contract was not in writing may be good ground of defence, when specific performance of the contract is sought against the vendor, for whose benefit the statute was passed; but if the vendor is willing to perform, the price paid cannot be recovered back. Contracts by parol for land are generally regarded as voidable merely. Philbrook v. Belknap, 6 Verm. R. 383. On this principle it is clear, that if the vendor does nothing to avoid the contract, but on the contrary is both able and willing to perform, the vendee cannot recover what he has paid. The precise point now before us was raised in the case of Dowdle v. Camp, 12 Johns. 451, and it was holden that the vendee could not recover back his money without some default of the vendor.- The same point was also very fully considered in Shaw v. Shaw, 6 Verm. R. 69, and decided in the same way. The verdict was therefore manifestly against the law and the evidence, and the motion for a new trial ought to have been sustained.

Judgment reversed and cause remanded.  