Allis v. . Read
New York Court of Appeals
Appeal from the judgment of the General Term of the Hew York Common Pleas, affirming a judgment for the defendants upon the report of the referee, for $3,260.05. ■ The action was brought to recover back moneys and the avails of goods and merchandise, paid by the plaintiff to the defendants, upon a certain contract for the sale of “ kerseys,” alleged to be void under the statute of frauds.
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Appeal from the judgment of the General Term of the Hew York Common Pleas, affirming a judgment for the defendants upon the report of the referee, for $3,260.05. ■ The action was brought to recover back moneys and the avails of goods and merchandise, paid by the plaintiff to the defendants, upon a certain contract for the sale of “ kerseys,” alleged to be void under the statute of frauds. The answer, among other things, sets up a counter claim for the balance of the purchase price of the “ kerseys ” unpaid. It appeared that on the 25th February, 1863, and on the 2d and 14th of March…
1Opinion of the Court
Church, Ch. J.
In any view which may be taken of the .validity of the contract for the sale and purchase of the kerseys, the plaintiff is not entitled to recover- for moneys paid upon them.
Moneys paid upon a contract invalid by the statute of frauds cannot be recovered back, provided the other party is ready and willing to perform the contract on his part. Such payments are voluntary, when made with a full knowledge of all the facts.
The law will not imply a promise to refund the money, so long as the vendor is not in default. (Abbott v. Draper, 4 Denio, 51; 12 Johns., 451.) It is claimed,…
2Cases cited2 opinions
- Abbott v. DraperNew York Supreme Court · 1847
- Dowdle v. CampNew York Supreme Court · 1815
3Cited by7 opinions
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- Hunter v. . WetsellNew York Court of Appeals · 1874
- Bates v. ChesebroWisconsin Supreme Court · 1875
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