The opinion of the court was delivered by
Redfield, J.It can hardly be said that the present case involves the consideration of any new principle of law. The decision of it depends, as in a majority of cases, perhaps, upon the construction we put upon the facts, and the general principles to which we reduce them.
*3761. We do not perceive how the defendant can now insist upon any claim against the plaintiffs for rent. Had he redeemed the premises from John Austin’s mortgage, and had the plaintiffs then failed to carry their contract with the defendant into effect, the plaintiffs might, in some form, have been liable for rent, or mesne profits ; — but when they were all the time holding under John Austin, and the defendant has wholly failed to perform his contract, so that the title to the land has thereby become absolute in John Austin, and the plaintiffs thereby subjected to the payment of rent to him, and have lost the land, it would be absurd almost to still subject them to the payment of rent to the defendant. This case is not nearly as favorable to the defendant’s claim for rent, as if he had originally put the plaintiffs in possession, and they had not been liable for rent to another ; and in such a case it was held that the defendant could not recover rent, where he was the occasion of the contract not being carried into effect, — nor could he, in any other form, recover an equivalent for rent, but was without a remedy for the use of the land. Hough et al. v. Birge, 11 Vt. 190.
2. It is objected to the plaintiffs’ claim for the money collected of Pettibone & Munson, that the contract is still open; but we think that is not the case. Whenever the defendant, by his own neglect, puts it out of his power to perform the contract on his part, the plaintiffs might recover back what they had paid, or done, in furtherance of the contract. For, as this contract was not in writing, the plaintiffs could have no other remedy; and the defendant’s conduct was equivalent to a formal rescinding of the contract on his part; and in such case it has been held that, even when the contract was such as to afford redress by special action, the party rescinding was liable, either in general assumpsit for what the other party had done in pursuance of the contract, or to a special action, at the election of the other party. But of late this general proposition has been somewhat doubted; but it was never doubted, that, when the special contract was so informal as not to afford a remedy, and one party rescinded, or abandoned it, the other might bring general assumpsit for what he had done under it. Kidder v. Hunt, 1 Pick. 328. See, also, in support of the general proposition, that the party not in fault may recover advances made in faith of a special contract, Which the other party has abandoned, Giles v. *377Edwards, 7 T. R. 181. But where the contract is still open, there is no remedy except upon the special contract. Cooke v. Munstone, 4 B. & P. 351. So, also, where it becomes impossible to restore the parties to their former standing. Hunt v. Silk, 5 East 449. But the proposition, so far as it applies to this case, is, I take it, undeniable.
We do not think a demand was necessary in this case before suit. It is not like the ordinary case of money collected. Here the defendant, at the time of receiving the note, promised to apply the money, when collected, towards the farm contract. The money was collected before this suit was brought. It became, then, at the time of collection, the same as so much money paid towards this contract; and there was no more necessity of a formal demand for the money, than if the defendant had received it in any other manner.
Judgment affirmed.