Dyer v. Graves

Barrett, J. This is an action of assumpsit in a special count, and the common money counts, in which the plaintiff claims to recover upon a contract with the defendant, for the breach of a guaranty made by the defendant, as to the quantity of a certain parcel of land. The plaintiff places his right of recovery upon the ground of the contract for the purchase of real estate, of which said guaranty constituted a part; which contract was by parol. As the case does not show that the defendant had any of the purchase money that was paid for the property, there is no ground for recovery under the count for money had and received. By the mutual understanding of the parties, the $8000. was to be, and was paid, or secured, by the plaintiff to the defendant’s father, — he- being [374] the owner of the property sold. . The report states “that the plaintiff and Augustus Graves arranged between themselves the payment of the $4000. to be paid down, and the balance to be paid on time, according to the bargain of Saturday night. Such payment down, after deducting the $50. handed to the defendant to bind the bargain, was made to said Augustus by the plaintiff, partly in notes of third persons endorsed by the plaintiff, and partly in the plaintiff’s own note payable at a bank.” This shows that said $50. was regarded as paid to the defendant, as part of the $4000. to be paid down ; and so far as the father was concerned, it is properly held by him as against the plaintiff. No point, however, is made in the argument, upon the payment of said $50., as giving a right of action for that particular sum. The rest of the payments were all made or secured directly to said Augustus Graves. Upon these facts, even if the contract should be held valid as against the statute of frauds, there is no foundation for the count for money had and received. And we think there is none for the count for the money paid ; for no money was paid by the plaintiff for the defendant. It was paid directly to the owner of the land as the price thereof. In this connection it is to be remarked that this case does not fall within the principle of the cases cited, of which White v. Miller, 22 Vt. 380, is a sample, as is obvious for reasons arising from the view just presented, as well as by reason of the character of the contract itself. This was not a sale, by the acre, of a given parcel of land, in respect to which there was a mutual mistake, or a fraudulent deception as to the number of acres ; but it was a sale of two parcels of land and the right to a spring of water, for a specified aggregate sum of money. The representation as to the quantity embraced only one of the parcels. Hence it is clear that a price by the acre was not, and could not have been in mind as an element or feature of the contract. It is further to be remarked that no fraud is alleged, as characterizing said representation ; and, if there had been, there has not been any offer to rescind, nor any repudiation of the contract, as laying the foundation for an action to recover back the money paid, as there was in some of the cases cited. On the contrary, the plaintiff abides by the contract in all its parts, — holds the land under the deed, and [375] brings this action to recover, by force of the contract, the value of the deficit in the quantity of the land, as it was guaranteed to be. To the claim that the plaintiff is entitled to recover on the ground of the failure of consideration, to the extent of that deficiency, what has already been said, as to the ground for a recovery upon the money counts, is applicable ; for it is seeking to recover for an overpayment, which was not made to the defendant, but to his father. On the whole, therefore, the legal character of the case seems to be truly presented by the special count; and upon that count he must stand for the assertion of his rights in the present action. That count sets forth, and the report shows, a clear ease of breach of the warranty, made as part of the contract for the sale of the land. For present purposes we do not discuss at all a view presented by the defendant’s counsel, viz : that the defendant was acting as the agent of his father, in negotiating the sale and making the warranty. We confine our consideration of the case exclusively to the question made as to the operation of the statute of frauds,— assuming that the warranty was the defendant’s personal undertaking. The contract of sale, including the warranty, was by parol. The property was conveyed to the plaintiff and payment was made therefor conformably to, and, so far, in execution of the contract, and so far, the contract is beyond the reach of the statute. But the part of the contract which consists in the warranty, still rests in parol, and is unexecuted. The defence is that the action is not maintainable because it is brought for the alleged breach of a contract for the sale of land. The leading principles of the law of the subject are well enunciated in the case of Davis v. Farr, 26 Vt. 592, and of Buck v. Pickwell, 27 Vt. 168, though neither of those cases, nor any case that has fallen under our notice, presents the subject as involved in the same state of facts as exists in this case. The books show, that, in case a contract for the sale of land, or of an interest in, or. concerning land, embraces some subject matter of a different character, which stands in the contract upon a distinct consideration, so that the contract both in its subject matter, and the consideration, is divisible and separable, such contract, though not in writing, may be enforced by suit, as to such part of it as does not [376] fall within the operation of the statute of frauds ; while that statute would effectually preclude an'action upon the other part of it. Of such a character is the case of Green v. Saddington, 90 E. C. L. 502. In Hodgson v. Johnson, 96 E. C. L., it is held that, unless the contract be so divisible and separable, the statute will preclude-an action upon any part of it. In the latter case, other cases were brought to the attention of the court, and the case of Green v. Saddington was specially remarked upon by Lord Campbell, Ch. J., and by Crompton, J., and was regarded by them as standing upon the divisible and separable chai’acter of the contract and consideration. The opinion pronounced by Lord Campbell, presented the point in a clear light, and is worthy of attention. In the case before us, the warranty was, in terms, a part of the contract of sale, and the consideration of the whole contract was entire and indivisible, viz : $8000. to be paid for the whole land and the right to the spring and the guaranty as to the quantity of one parcel of said land. The case of Ballard v. Bond, 32 Vt. 355, seems to stand upon the same principle as Hodgson v. Johnson, and, in its legitimate application, to be controlling in the present case. The plaintiff and defendant made a parol contract that the former should convey to the latter a farm for a certain price, and that if the plaintiff could within a year find a purchaser at a higher price, the defendant should convey the farm to such purchaser, and that the plaintiff should have one-half of the gain so made. The plaintiff conveyed the farm to the defendant, and received payment therefor. Within the specified time he found a purchaser at an advance ; but the defendant would not convey to such purchaser. It was held that that contract was within the statute of frauds, and that the plaintiff could not recover for the breach of it. It has been held in several of the states as well as in this state, that, where the contract for the sale of land, or for an interest in land, has been fully executed by a conveyance, payment therefor may be enforced by an action ; as in Ascutney Bank v. McK Ormsby, 28 Vt. 721. But we think no case is to be found, in which the purchaser, upon payment of the purchase money, has been held entitled to. maintain an- action to recover damages of the other party, for refus [377] ing to convey, or to perform any other stipulation of the contract touching the sale of land or an interest in land. The distinction is well marked by Cb. J. Poland, in Ballard v. Bond. The contract of guaranty in this case was, in effect, an undertaking by the defendant to make the plaintiff compensation for the deficiency in the number of acres specified. This certainly was part of the contract for the sale of the land, and as it was not in writing, and this part is still unexecuted, we concur in holding that it is within the intent and effect of the statute of frauds. The pro forma judgment of the county court is reversed, and judgment upon the report is rendered for the defendant.