Wheeler v. Mather

Citations

• 56 Ill. 241

Syllabus

<p>1. Action — vendor and purchaser — right of the latterr to recover hack purchase money paid, afterr a rescission of the contract by the former. Under a contract for the sale of land, providing that time, in respect to the payment of the several installments of the purchase money, shall he regarded as of the essence of the contract, and that, in case of default in prompt payment of any one installment, the vendor shall have the right to declare a forfeiture of the contract, if the vendee enters upon its performance, paying part of the purchase money, hut makes default as to another part, which is inexcusable, and the vendor, being without fault, exercises the right given by the contract to declare the same terminated, and in so doing acts fairly and within the scope of the power, then no action can be maintained by the vendee to recover back what he has paid; and this is the rule, notwithstanding the contract does not provide that the vendor may retain the money paid in case of a forfeiture of the contract: Mr. Justice Scott and Mr. Ohiee Justice Lawrence, dissenting.</p> <p>3. But a vendor who is himself in fault, for fraud or violation of his contract, can not exercise the power so given, without making restoration of what he has received under it. In such case the law would imply a promise to repay the purchase money received, and the equitable actiop for money had and received would lie to recover it.</p> <p>8. Remedy of the vendee, under other circumstances. There may be, however, cases where a vendee, chargeable with a technical default, under such a contract, might, under particular circumstances, be entitled to other relief. As, in a case where he had paid a large portion of the purchase money, made valuable improvements upon the property, and his default was the result of fraud, accident, or mistake; or the vendor should attempt to exercise the power of forfeiture in a case not fairly within its scope; or unfairly and oppressively, with the view of taking