Jensen v. Corning Farms Co.

RICHARDS, J.

This action was brought by the plaintiff as the vendee under a contract for the sale of real property to recover from the defendant, Corning Farms Company, a corporation, the amount paid by the plaintiff to said defendant under the terms of said contract after the same had been terminated by the vendor for the alleged failure of the

[682]

vendee to make certain installment payments due upon the purchase price of said property, according to the terms of said contract.

The amended complaint was in two counts, the first of which set forth the contract

in haec verba

and alleged the making of the payments thereunder for the recovery of which the suit was brought, and further alleging a mutual cancellation, termination, and rescission of said contract. The second count was in the form of the common counts for money had and received by the defendants to and for the plaintiff’s use. The defendants in their answer admitted the making of the contract and the payment of the sums alleged to have been paid by the plaintiff thereunder; but they denied that said contract was canceled, terminated, 'or rescinded by mutual consent, and in that respect affirmatively averred that the plaintiff, after having made repeated defaults in the payment of the installments due upon said contract, had wholly abandoned any intention to carry out or fulfill the terms of the same, and had notified said defendants of his said intent, and that it was only after such repeated defaults and such express notification of the plaintiff’s intent to abandon said contract and refuse to fulfill its terms that said defendants had proceeded to terminate the same by giving notice of such termination to plaintiff.

Upon the trial and submission of the cause the court made its findings of fact in which, after finding that the plaintiff had made the payments alleged to have been made by him aggregating the sum of $6,142.58, proceeded to expressly find that the plaintiff, after a series of defaults in making the installment payments due under the terms of said contract, had notified and informed the defendants that he did not • intend to, and that he refused to, carry out said contract, and that he had permanently abandoned all intention to perform the same, and that thereafter the defendants had terminated the same by notice to the plaintiff as averred in their said answer. Thereupon the trial court ordered judgment entere,d in favor of the defendants, and it is from such judgment that the plaintiff prosecutes this appeal.