Higbey v. Associated Acceptance Corp.

[658]

YORK, J.

This is an appeal from a judgment rendered in an action for money had and received, in which the vendees of certain corporate stock seek to recover from their vendor the amount of partial payments made on three contracts for the purchase of the stock. The action was predicated upon the alleged rescission of the contracts by the vendor. Plaintiffs also appeal from an order denying their motion for a new trial.

The sole question between the parties here is whether or not the contracts were rescinded. None of the contracts was fully paid, but different amounts of cash were paid under each contract, and in each instance promissory notes, secured by a pledge of the stock, were given for the balance due. The same form of contract was used in each instance except as to dates and amounts.

The case really turns upon the correspondence between the parties with reference to the nonpayment of these notes and as to just what was meant by the letter of the defendant in which it was stated: “ ... we will declare the amount you have paid forfeited, and your contracts at an end”. Thereafter, defendant wrote plaintiffs another letter, in which it was stated: “Since you have wholly failed to comply with the terms of the contracts heretofore entered into between yourself and the undersigned relative to the purchase of certain stock by the undersigned for your account, you are hereby notified that the undersigned does by this notice declare all of your right, title and interest under and by virtue of said contracts void from this date, and further declare forfeited any amount which you have paid thereon in accordance with the terms of those contracts.” To this letter plaintiffs replied as follows: “I agree to your action in cancelling and terminating my order and contract . . . but I do not agree that having terminated the contract you have either a moral or legal right to keep my money already paid on the order to purchase stock.”

In its findings the court found that the sales occurred subsequent to May 26, 1931, which was the date of the last letter herein quoted received by plaintiffs from defendant. However, the record does not disclose any irregularity in the sales, and does disclose that the sale in each instance took place strictly in accordance with each and all of the provisions of