majority"> Allen, J.

The burden was on the plaintiff to prove the allegations of his complaint not admitted by the answer and on the defendant to establish his defense and his counter-claim, but neither party was required to offer evidence of facts admitted in the pleadings. It follows, therefore, as the matters alleged by the defendant as a defense and *119 counter-claim were denied by tbe reply, that the defendant was not entitled to recover upon his counter-claim or to diminish the amount of the recovery by the plaintiff without furnishing evidence in support of his allegation; and as the plaintiffs introduced no evidence, they could only recover on the facts admitted, which are that the defendant agreed in writing to convey a certain tract of land to the plaintiff at a specified price; that the defendant had received $350 as a part of the purchase price; that thereafter the defendant conveyed the land to a third party and made it impossible for him to comply with his contract, and that he had paid to the plaintiffs $50 on the amount received from them, leaving a balance due of $300, for which his Honor rendered judgment in favor of the plaintiff.

It requires no citation of authority to sustain the position, that when one receives money upon a contract and then voluntarily makes it impossible for him to perform the contract, that he must at least return the money he has received. Sprinkle v. Wellborn, 140 N. C., 163.

The course taken by his Honor in rendering judgment upon the admissions made is in accordance with the ruling in Parker v. Bladsoe, 87 N. C., 221, which is approved in Curran v. Kershner, 117 N. C., 264.

In the Parker case the action was to recover on a note for $1,244.72. The answer set up certain defenses which required a reference, but it admitted $499.20 to be due, and it was held proper to render judgment for the latter amount and order a reference as to those matters in controversy.

Affirmed.

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