Walters v. Miller

Baldwin, J. The plaintiff by the institution of his suit, claiming money instead of a specific performance, disaffirms* that portion of the contract in regard to the execution and delivery of the deed, on the ground that the time within which the defendant had obligated himself to execute and deliver a deed had transpired. The only question necessary to be determined is, whether the defendant by failing to execute a deed for the premises described in the bond, without the plaintiff having presented the bond and having demanded a deed, is in such default as entitles the plaintiff to recover back the purchase money with damages. In contracts for the sale of real estate, when the purchase money has been paid, but no deed executed, the purchaser will not be permitted to rescind the contract and recover back the purchase money, unless the vendor has been guilty of fraud in making the contract, or the vendor can not or will not perform on his part, or unless there has been a voluntary rescisión of the contract without default on either side. To rescind a contract the law requires some positive act, by the party who would rescind, which shall manifest such intention, and put the opposite party on his guard, and it then gives him a reasonable time to comply. Higby v. Whitaker, 8 Ohio 198. The bond sued on shows the consideration for the land sold to have been $300 — the penalty for a failure to convey is double that amount. Time is not made of the essence of the contract. The plaintiff never gave notice to the defendant of his intention to rescind; the bond ivas never presented to defendant and its fulfillment required. It is claimed by the appellant that the commencement of the suit is a sufficient demand. Eor a money demand in some cases this would be sufficient. But before the ven-dee has a right to rescind the contract and recover upon the [430] penalty in the bond of the vendor, the bond should be presented and a demand made that its conditions should be complied with. The court did not err in overruling plaintiff’s demurrer. Judgment affirmed.