Burk v. Schreiber
James Burk & another v. Hinda E. Schreiber
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Summary
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Opinion of the Court
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Knowlton, C. J.
There is no dispute that, by the terms of her contract, the defendant was bound to give the plaintiffs a *36 deed which would convey a good title. The time for the delivery of the deed and the payment of the balance of the price was extended three times, for a period of twelve days in all, and on the last day appointed it appeared that there was an attachment upon the property which was outstanding and undischarged. The defendant’s attorney submitted a paper of recent date which purported to release the attachment, signed by the attorney of record of the attaching creditor. The attaching creditor had deceased nearly four months before, and no administrator had been appointed. The plaintiffs then declined to accept the deed tendered by the defendant, and declined the defendant’s offer to procure a discharge of the attachment as soon as possible. They bring this action, not to recover damages for the breach of the defendant’s contract, but to recover back a part of the purchase money previously advanced at the time of the auction sale.
The plaintiffs were not bound either to accept the deed while there was an incumbrance on the property, or to wait to see whether the defendant would procure a release of the attachment after the appointment of an administrator, or give a bond with sureties to dissolve the attachment. The defendant was unable to perform her contract according to its terms, and the plaintiffs, insisting on a performance, had a right to rescind it and recover back their payment as money had and received to their use. They were not obliged to tender performance, or to make a formal offer of performance. The inability of the defendant to perform gave them a right to rescind. Swan v. Drury, 22 Pick. 485 . Pickman v. Trinity Church, 123 Mass. 1, 6 . Mead v. Fox, 6 Cush. 199 . Callaghan v. O'Brien, 136 Mass. 378 . Gormley v. Kyle, 137 Mass. 189 . Richmond v. Gray, 3 Allen, 25 . Jeffries v. Jeffries, 117 Mass. 184 . The plaintiffs may recover their advance payment on the ground that the contract has ceased to be in effect, and that the money is held without consideration.
Judgment on the verdict.
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