end to by the concurrent act of the parties. The defendant sends word to the plaintiff that he can no longer retain the possession of the premises, but intends to abandon them. The plaintiff directs a person, in the event of such abandonment, to take charge of them. After this, the defendant leaves the house and lots, and the possession is resumed by the plaintiff. The special contract is thus given up-and the right of the plaintiff to recover rent for the time the defendant enjoyed the premises, must be decided by the same rules as if the possession had been originally taken upon an understanding that the defendant should pay what was reasonable. The verdict of the jury is founded upon this view of the subject. Substantial justice has been done between the parties, and a new trial ought not to be granted.

Judge BURNET's dissenting opinion.

I dissent from the opinion of the court, given in this case, from a conviction that the variance between the contract proved, and that set out in the declaration, is material and fatal. The sum laid in the declaration as the consideration of the lease, is 225 dollars. The sum proved by the witnesses is 200 dollars certain, and more if the defendant could afford it.

I do not perceive any resemblance between this case and those cited by the plaintiff. This contract has not been performed by either party. Fitch did not secure to Sargeant the use of the ferry for the term stipulated, in consequence of which Sargeant left the premises before the term expired, under a belief that he had a right to do so. The contract is open, and the question between the parties seems to depend on its legal import, and the effects of their acts under it. The plaintiff contends, that he has a right to recover the full amount of rent stipulated to be paid for the term, and also damages for breach of the engagement to keep the premises and boat in repair, and to deliver them in good order. The defendant contends, that in consequence of the loss of the ferry, he was not bound to perform on his part, and that he is not answerable for rent or damage.

I do not see how these questions can be settled on the general counts, or how such questions could exist, if the contract had been either abandoned or performed. If the plaintiff had proved the contract precisely as he has stated it, the subject of controversy would have been the loss of the ferry, and the damage done to the property, and whether the former exonerated the defendant from the payment of the whole, or a part of the rent, and whether the latter entitled the plaintiff to damages, and if so, to what extent. These questions arise out of the contract, and must be determined by a reference to it. Their existence shews, that the contract is open and disputed, and the variance between the contract charged, and that proved at the trial, shews also that the terms of the contract are disputed.

I know of no exception to the general rule, that a contract open and disputed, must be declared on specially. As Fitch was bound to secure to the tenant the use of the ferry for the whole term, when he failed to do so, he broke the contract. The defendant has also failed to perform it, by losing the boat, injuring the property, and withholding the rent, or a part of it; consequently neither party has performed. The removal of Sargeant from the house before the expiration of the term, was no abandonment of the contract; it was neither more nor less than a declaration, that having lost the ferry he was not bound to per

form; the correctness or incorrectness of which depends on the terms of the contract. This fact does not assimilate the case to that class of cases in which the plaintiff abandons and sues to recover back his deposit, nor to the cases in which the plaintiff having fully performed, resorts to his general counts,

a

BUCK. WADDLE. ET AL.

It is well settled, that where money is paid upon a parol contract for the sale of land, and the vendor refuses or neglects to execute the contract, the money paid may be recovered back; Where justice is done by a verdict, a new trial will not be granted on technical grounds.

This was an action of assumpsit. The declaration contained the common money counts, in support of which the plaintiff offered the deposition of Joseph Ronck, which stated in substance, that deponent had sold to defendants eight lots of ground, for which they owed him 1200 dollars; that the defendants were to pay the money secured by a mortgage on the premises, previously given by de. ponent to John T. Barr, for about 800 dollars. That after that contract, and before the execution of the deed, the defendants told deponent that they had sold one of the lots to Samuel Buck, the plaintiff, for 125 dollars, and that Buck was to pay the money to the deponent for the defendants' use; that he had understood from both parties, that the defendants were to cancel and lift, the mortgage, so that it should have no lien on the lot sold to Buck; that the defendants directed him to make a deed for the lot to Buck, which he did on Buck's securing the 125 dollars; that on a settlement with the defendants he gave them a credit for the 125 dollars; that he had no interest in the event of the cause, for Waddle, McGarraugh and Buck knew the situation of the ease as well as he did, and Buck gave him a general release on the 15th July last and had since given him a special release. The deed to Buck was a general warrantee deed. The releases referred to in the deposition were produced. By the first, "Buck re leases to Ronck, his heirs, &c. all demand in law or equity against him by rea son of any act of him, said Ronck, to this day." The second releases "all right of action against him on account of any real estate by him deeded to me, and allow him to convey the same to any one else." The deposition was objected to, but the court being divided on the question, it went to the jury. The plaintiff then proved the mortgage from Ronck to Barr, and produced the record of a judgment by scire facias on the mortgage, in favor of Barr against Ronck, and an execution on the judgment, by which it appeared the lot had been sold by the sheriff, and purchased by the defendant, Waddle. A witness was then called, who proved, that after the above transactions, a blacksmith wished to rent the lot; that the defendant, Waddle, said Buck had no right to rent the lot till he paid the expense of the sheriff's deed; that he could have the lot if he would pay that expense. He thought Waddle also said, that he himself had no right to rent it.

The second witness testified, that Buck lived on the lot at least one year; that he afterwards rented it to a person of the name of Legore; that the witness himself had rented it of Buck for ten months, for which he paid him 20 dollars; that he was still occupying the lot, but under no particular person; that no one molested

The third, and last witness, testified to the possession of Buck, and that Wilson had rented from him.

No testimony was offered to shew the plaintiff had divested himself of the title derived from Ronck, or that he had given notice of his intention to abandon the contract, other than by the commencement of the suit.

On this evidence the case went to the jury, who found for the plaintiff. The defendants moved to set aside the verdict, and grant a new trial. 1. Because the deposition of Ronck was improperly admitted. 2. Because the testimony presented a case which did not entitle the plaintiff to a recovery in this form of action. The court were divided, and the decision reserved, &c.

King, in support of the motion. Leonard, contrà.

By the COURT.

We are all agreed that there is nothing in the first ground assigned for a new trial. It is well settled in New York and in Kentucky, that where money is paid upon a parol contract for the sale of land, and the vendor refuses or neglects to execute the contract, the money paid may be recovered back, and this stands upon too plain a principle of justice to be disputed.

Upon the second ground assigned, a majority of the court is of opinion that a new trial ought not to be granted. The defendants contracted to remove the lien of the motgage from the lot they sold. They did not do so. On the contrary, they possessed themselves of the paramount title derived under the lien they agreed to extinguish, and refused to conform it to the plaintiff unless he would make a new purchase. For the principle upon which they could demand a dollar for making a new deed, is none other than that having it in their power, they would insist upon a new bargain. Whether this amounted to an abandonment of the first contract was left to the jury, who have found in the affirmative. It is not pretended but that upon a special count, rightly framed upon the contract, the plaintiff ought to have recovered. Substantial justice has therefore been done, and where that is the case, a new trial ought not to be granted.

Judge BURNET's dissenting opinion.

In stating the reasons that have induced me to dissent from the opinion expressed by the court in this case, I shall confine myself to the second reason filed for a new trial viz: that the testimony does not support an action for money had and received. The case appears to be this. Ronck being the owner of certain lots in the town of Washington, mortgaged them to Barr, and afterward sold them to the defendants, who agreed to satisfy the mortgage. The defendants afterwards sold one of the lots to the plaintiff for 125 dollars, who, by the agreement, was to pay the purchase money to Ronck, and receive from him a deed, the defendants promising to discharge the mortgage. The plaintiff paid the purchase money, and received his deed, according to contract. The defendants did not satisfy the mortgage, as they were bound to do, in consequence of which the lot was sold on a judgment obtained on the mortgage, and purchased in by one of the defendants for the benefit

of the plaintiff, who was required to pay the expense of drawing the deed. The plaintiff took possession of the lot, at the time of the contract-lived on it himself, and rented it to different persons. He still holds the deed; he has not restored the possession to the defendants, or offered to do so; nor has he given notice that he considered the contract at an end. On this state of the case, the question to be decided is, whether he can now recover from the defendants the money paid to Ronck in an action for money had and received. It is well settled, that an action of as sumpsit may be sustained on a sale, cither for the price of the thing sold, or to recover back the purchase money, when there is a defect in the article sold, or a fraud in the vendor. It is also settled, that in every sale the vendor is supposed to have a good title, and if it turns out that his title is defective, the vendee may waive the contract, and recover back the money paid; and it is admitted that this principle applies to contracts for the sale of real estate, as well as of goods and chattels. (5 Bur. 2639. 2 Blac. Rep. 1078.) In the case before us, it appears that the lot sold to the plaintiff was incumbered by a mortgage, of which he had notice, and in consequence of which it was afterwards sold by the sheriff. The plaintiff therefore had a right to waive the bargain, and recover back the purchase money, unless his title had been otherwise secured. Without stopping to inquire whether the offer of a deed from the sheriff, on condition of paying the sum of one dollar, under the circumstances of this case, was not such a security of title as would bar him from the right of abandoning the contract, I will proceed to the enquiry, whether he has in fact waived the bargain, so as to entitle himself to this action, or whether, as the case stands, he was not turned over to his special action on the contract. In cases where the article sold has not been delivered, if there be a defect in the thing itself, or a fraud in the vendor, the vendee, by giving notice that he declines the bargain, may recover back his money in this form of action. But if possession has been given, the action for money had and received cannot be maintained till the thing purchased has been restored; for till that be done, the contract is not at an end; it remains open, and the proper reme. dy is an action founded on the contract. Until the contract be terminated its stipulations are matters that may be controverted. A contract may contain a warranty, or, as in this case, a promise to remove an incumbrance, and while the contract remains open, these stipulations may be disputed, but they cannot be tried in this form of action. The plaintiff must resort to the contract. In the case of Towers vs. Barret, (1 Term Rep. 133.) this action was sustained, but it was on the ground that the property purchased had been returned, and the contract thereby terminated; and it was admitted in that case, that while the contract continued open, the plaintiff could only recover damages, and that for that purpose he must state the special contract, and the breach of it. It was also said by justice Buller, in that case, that if the plaintiff intended to recover back his money, he must rescind the contract, by returning the property in a reasonable time, otherwise he will be put to his action for damages on the special contract. Weston vs. Downes (Doug. 23) was an action for money had and received. The plaintiff was nonsuited by Lord Mansfield, on the ground that there was a special contract, and that the defendant ought to have had notice, by the declaration, that he was sued on that contract. Buller Justice observed, that the action would not lie, because the defendant had not precluded himself from entering into the contract by taking

back the horses, and that when the contract is open it must be stated specially. In Power v. Wells, cited in the last case, the defendant had warranted a horse sound, which proved to be unsound. The plaintiff having tendered a return of the horse which was refused, brought an action for money had and received, to recover back twenty guineas paid on the contract, and it was held by the conrt, that the action would not lie. The distinction seems to be clearly settled that when the contract has been disaffirmed, and the property restored, assumpsit will lie, to recover back the money paid, but where the contract is open, or the property remains in the hands of the vendee, the action must be on the contract itself. In this case there is nothing in the evidence from which an inference can be drawn, that the contract was terminated. On the contrary it appears to be open, and subject to litigation. The plaintiff accepted, and still holds a general warranty deed for the lot, which is an affirmance of the contract. He was put into possession, has occupied and rented it, and the person now in possession is his tenant, holding over. The evidence of the first witness is nothing more than the expression of an opinion, by one of the defendants, that the plaintiff was liable to pay the expense of the sheriff's deed, and that he had no right to rent the lot, till he had done so, or in other words, that the plaintiff was bound, by the bargain, to do something more than he had done. This language so far from conveying an idea, that the contract was at an end, could only have proceeded from a conviction that it was open and disputed.The import of it seems to be, that Waddle, having purchased in the lot, to quiet the title, the plaintiff ought to pay the expense of the deed, as by the contract, the deed was to be made by Ronck, without expense to the defendants. If Waddle had believed that the contract was at an end, his language must have been very different. But whether this opinion of Waddle was correct, or not, does not alter the case. The inference to be drawn from it is still the same, that the contract was open, and disputed. If it be admitted that the release to Ronck, has discharged the action of covenant, so as to make him a competent witness, it does not divest the plaintiff of his claim of title, nor of his possession. He may still consider Waddle, as his trustee, and by a decree in chancery, require him to convey the right, derived from the Sheriff. The existence of such a remedy, is a complete negative to the pretence, that the contract is closed. The general rule on this subject is, that if there be a special contract, it must be declared on. The safety of the defendant requires that he should be informed of the real ground of action. Should this rule be dispensed with, he may be surprised at the trial, and subjected to a judgment, that might have been avoided, had he known in time the nature of the plaintiff's, claim. He may also be exposed to the danger of a second recovery, for the same cause. In Wear v. Burrough's 1 Stra. 648, the plaintiff declared on a special contract, and also on an indebitatus assumpsit. At the trial he proved a special agrecment but variant from the one declared on, and the Chief Justice would not permit him to have recourse to his general counts. The same principle will be found in 1 Lord Ray. 735. 1 Term 447. 4 Term 314. The plaintiff in this case, having omitted a special count altogether, cannot be in a better situation, than if he had stated a special contract, and proved one different, in substance,