Murray v. Clay

Oldham, J. It is a principle well settled that where a party has covenanted to do an act, for which he has received a consideration and fails to perform the act, the other party may either bring covenant for the breach or assumpsit to reclaim the consideration. Sugden on Vendors, vol. 1,368-9. Vol. 2,420 (Hammond’s Ed.) Weaver vs. Bentley, 1 Caines 47. It is a common practice for purchasers of real estate, upon the refusal or inability of the vendor to convey, to bring an action of assumpsit for the purchase money, instead of covenant to recover damages for a breach of the contract. The last remedy is in affirmance of the contract; the first is not upon the contract, but in-disaffirmance of it. To entitle the plaintiff to recover in this case in the circuit court, it was necessary for him to prove the contract under which he paid the money, and also the failure, refusal or inability of the defendant to perform it on his part. This the court should have permitted him to do. The court erred in excluding the testimony offered, for which the judgment must be reversed.