There is some authority for the proposition that in the case of the renunciation or breach of a contract under seal the injured party may not elect to sue in assumpsit for restitution, but is confined to his remedy in debt or covenant.2 Two reasons may be offered for this view: (1) the doctrine that one must pursue his highest remedy, and (2) the doctrine that a contract under seal can be dissolved only by an act of like dignity. The first doctrine, it is submitted, is not properly applicable to this case if the contract is regarded as dissolved by the "rescission." For if there is no longer a promise, the only remedy of the plaintiff is an action for restitution.3 But if the right to restitution is merely an alternative remedial right under the contract, as suggested at the beginning of this chapter, the doctrine would seem to present a real obstacle to the use of the remedy in the case of a contract under seal. The second doctrine, though thoroughly established in the early common law, is in this country disappearing. In many jurisdictions the seal has been entirely divested of its legal attributes; in others, while still recognized by the law, it has so suffered in prestige that a sealed contract may be varied or discharged by parol agreement.1 It is "going very little further" to hold that a sealed contract may be rescinded for repudiation or substantial breach:
1 Also: United States v. Molloy, 1904, 127 Fed. 953; 62 C. C. A. 585; Carter v. Fox, 1909, 11 Cal. App. 67; 103 Pac. 910; Carney v. Newberry, 1860, 24 111. 203; Wolf v. Schlacks, 1896, 67 111. App. 117; Anderson v. Haskell, 1876, 45 la. 45; N. Y. Brokerage Co. v. Wharton, 1909, 143 la. 61; 119 N. W. 969; Festing v. Hunt, 1890, 6 Manitoba 381; Brown v. Woodbury, 1903, 183 Mass. 279; 67 N. E. 327; Stahelin v. Sowle, 1891, 87 Mich. 124; 49 N. W. 529; Peet v. City of East Grand Forks, 1907, 101 Minn. 518; 112 N. W. 1003; Mugan v. Regan & Co., 1892, 48 Mo. App. 461; Welsh v. Gossler, 1882, 89 N. Y. 540; Preble v. Bottom, 1855, 27 Vt. 249. For additional cases, see Wald's Pollock, "Contracts " (Williston's ed.), p. 342, n.
2 Western v. Sharp, 1853, 14 B. Mon. (53 Ky.) 144; McManus v. Cassidy, 1870, 66 Pa. St. 260. But see Amer. Life Ins. Co. v. McAden, 1885, 109 Pa. St. 399; 1 Atl. 256.
3Keener, "Quasi-Contracts," pp. 308, 309.
Weaver v. Bentley, 1803, 1 Caines (N. Y.) 47: Kent, J. (p. 48): "It is not stated for what the notes, money or stock were given; presuming them to have been the consideration of the covenant, the question then will be, whether the defendant having failed to perform on his part, the plaintiff may disaffirm the contract and resort to his assumpsit to recover back what he had paid. We are of the opinion that he had his election either to proceed on the covenant, and recover damages for the breach, or to disaffirm the contract, and bring assumpsit to recover back what he had paid on a consideration which had failed.
Ballou v. Billings, 1884, 136 Mass. 307: Holmes, J., after referring to the Massachusetts cases holding that a sealed contract might be discharged by parol agreement (p. 309); "Whether these cases would have been decided the same way in earlier times or not, we have no disposition to question them upon this point, and it is going very little further to hold that such a contract may be rescinded if it is repudiated by the other side." 2
Professor Keener says that the cases indicate that while money paid in performance of a contract under seal may be recovered in a count for money had and received, the sole remedy of one who has delivered property or rendered services under such a contract is an action on the covenant.1 Professor Williston, however, has pointed out that while this distinction may be suggested by the English cases, it finds no support in America.2 In Weaver v. Bentley,3 where the plaintiff had given notes, money, and farm stock, a recovery appears to have been allowed for the property as well as for the money, and in none of the other cases, whether allowing a recovery or not, does the court evince a consciousness of the distinction.
1Wald's Pollock, "Contracts" (Williston's ed.), pp. 826, 827, and cases cited.
2 Also: Webster v. Enfield, 1848, 5 Gilman (10 111.) 298; Amer. Life Ins. Co. v. McAden, 1885, 109 Pa. St. 399; 1 Atl. 256. And see Siebert v. Leonard, 1871, 17 Minn. 433.