Way v. Cutting

Decided December 15, 1845

Superior Court of New Hampshire · decided 1845-12-15

Assumpsit, for $400, money had and received, submitted to the consideration of the court upon the following statement: On the 19th of September, 1838, the defendant, upon application of the plaintiff, agreed to sell and convey to Mm all his interest in certain lands, situated in Newport, at a sum to be determined by appraisal.

Good law ✅— No negative treatment on recordhow we know

Decided 1845-12-15

How this case has been cited

Cited by 4 later decisions — most recently July 1930

4 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Parker, C. J.

¶1We are of opinion that this action cannot be maintained. The contract was entire, and has never been rescinded.

¶2This case cannot be distinguished from that of Miner v. Bradley, 22 Pick. 457, unless it be in the fact that the contract there related to personal property, and the vendee could maintain an action upon it for the breach. It may be that here the plaintiff cannot maintain an action on the contract, there being no writing between the parties.

¶3If the result would be that the plaintiff was without remedy otherwise, we should be inclined to consider this case an exception to the general rule, for that reason, and to hold that the plaintiff could recover a proportionate part of the purchase money. 17 Maine 296, Richards v. Allen. But as there has been a part performance by the defendant, the plaintiff may have relief in equity, if the defendant has failed to convey all that he contracted to convey and was paid for. Plaintiff nonsuit.