Benson v. Shotwell

¶1I concur in the judgment, and what is said by Mr. Justice Van Fleet. If Benson had repudiated his contract entered into with Shotwell, for the sale of this land, then Shotwell would have been entitled to recover from Benson the amount of money he had paid thereunder, less the actual damage sustained by Benson by reason of any breach of the contract committed by Shotwell. (Shively v. Semi-Tropic etc. Water Co., 99 Cal. 260, and cases there cited.) Benson’s conduct in bringing this action was, in effect, a repudiation of any rights of Shotwell under the contract. It was as substantial and effectual a repudiation as we can imagine. It necessarily follows that defendant in this action is at least entitled to recover the money he has paid to plaintiff under the contract, less *169the damage suffered by reason of any breach thereof; and to this extent the questions as to whether plaintiff had a good title to the land, or was able to give defendant actual possession thereof, or made a good and valid tender of the deed, are entirely immaterial as I view the case, and the decisions of this court bearing upon the principles here involved. This is the first case coming before us where a vendor has attempted to quiet his title under the circumstances here presented, and I am clear that he can be entitled to such relief only upon the return of the money he has received from the vendee. This would seem to be sound equity, for the vendor has no right to both land and money.