In the Vermont case of Hawley v. Moody2 it was held that one who defaults after having received personal property in part performance of the contract cannot, without the consent of the other party, revest the title of the thing received, and may be compelled, notwithstanding a tender of specific restitution, to make restitution in value. The plaintiff orally contracted for a lease of the defendant's premises and "paid the defendant at the time one hundred dollars, in a gold watch." The defendant refused to execute a lease and tendered the watch back to the plaintiff, but the plaintiff refused to receive it, and it was subsequently attached by one of the plaintiff's creditors and sold on execution against him. In an action of assumpsit to recover one hundred dollars, Redfield, J., said:3
"But if the party repudiating the future performance has himself received advances which he declines to pay for in the mode stipulated, it is regarded as equitable that he should refund in the usual mode for money had and for goods sold, and it is not in his power without the consent of the other party, to revest the title of the specific thing received.
"This seems to us the only view consistent with general principles applicable to the subject, or with the decided cases, and manifestly just and equitable. If the party has bought goods which he declines to pay for in the mode stipulated, and which, but for his own act he might do, he ought and he must be content to pay in the usual mode of paying for goods sold and delivered, and this recovery may be had under the general counts."
1 Holthouse v. Rynd, 1893, 155 Pa. St. 43; 25 Atl. 760; Masson v. Swan, 1871, 6 Heisk. (53 Tenn.) 450; Vaughn v. Vaughn, 1898, 100 Tenn. 282; 45 S. W. 677.
2 1852, 24 Vt. 603. 3 At page 606.
This decision is disapproved by Professor Keener upon the ground that the primary obligation of the defendant was to make specific restitution and that consequently the tender of such restitution threw the risk of subsequent loss upon the plaintiff. He says:1
"It is submitted that the true nature of the obligation is that of restitution, the law compelling the party who is not willing or able to make specific restitution, to make restitution in value, a court of law, as distinguished from a court of equity, having no means by which to compel the defendant to make specific restitution. The true nature of this obligation becomes more apparent if we consider a case where, because of the subject matter of the contract, a court of equity will take jurisdiction. Take the case of a defendant receiving from a plaintiff a conveyance of land, in exchange for which he agrees orally to convey to the plaintiff another piece of land. If he refuses to convey this land the obligation which a court of equity will impose upon him is to restore specifically to the plaintiff that which he received from him, the court treating him for this purpose as a constructive trustee of the land conveyed to him. The obligation of specific restitution is imposed upon him for the reason that it is the unjust detention of that piece of property which enriches him at the expense of the plaintiff, and therefore renders* his conduct inequitable and against conscience. Now, the fact that in a given case the subject matter of a contract is such that a court of equity will not take jurisdiction, should not change the character of the obligation when a court of law adopting equitable principles attempts to give to a plaintiff at law such relief as its machinery enables it to give."
Conceding the force of this argument,2 it does not follow that an obligation to make specific restitution actually exists where the heirs at law of one who, by assignment of title bonds, had transferred at law. There are few, if any, cases which recognize it,1 and the courts generally describe the obligation, not as an obligation to return the property received, but as an obligation to pay its value.2
1 "Quasi-Contraets," pp. 286, 287.
2 See Ramey v. Slone, 1901, 23 Ky. Law Rep. 301; 62 S. W. 879,