Plummer v. Bucknam

Appleton, C. J.

The plaintiffs contracted with the defendant to purchase of him a lot of land. The bargain was by parol and within the statute of frauds. The plaintiffs paid fifty dollars in part performance, when the bargain was made. Afterwards the plaintiffs terminated the contract, notified the defendant of that fact and demanded the fifty dollars paid, which the defendant refused.

A verbal contract for the sale of lands is void. If a parol contract is made, and fulfilled on the part of the purchaser, and the seller is ready and willing to perform his agreement, no action can be maintained to recover back payments. But, if the seller refuses to perform the contract, the other party not being in fault can recover the payments he has made. Kneeland v. Fuller, 51 Maine, 518. Here the plaintiffs voluntarily ended the contract, — since which time there has been no new agreement. " It would be an alarming doctrine,” remarks Spencer, J., in Ketchum v. Evertson, 13 Johns., 359 , a similar case to the one under consideration, "to hold that the plaintiffs might violate their contract, and, because they chose to do so, make their own infraction of the agreement the basis of an action for money had and received. E.v.ery man who makes a bad bargain, and has advanced money upon it, would have the same right to recover it back that the plaintiffs have.” When the non-perform *107 anee is on the part of the plaintiff, he cannot recover payments already made, the defendant not being in fault. Rounds v. Baxter, 4 Greenl., 454; Smith v. Haynes, 9 Greenl., 128. Plaintiff nonsuit.

Cutting, Kent, Dickerson and Daneorth, JJ., concurred.