(dissenting):
The trial court erred in its findings relative to the damages sustained by the defendant. One of the principal elements of benefits received by the purchaser in possession of land is the reasonable rental value thereof. The trial court made no finding regarding that value. The purchaser had possession of the land for some thirteen months. There is a rule of thumb, generally recognized, that the rental value of property is one percent of the value for each month’s use; also, there was testimony that the reasonable rental was between $1,500 and $1,700 per month. It thus would appear that since the value was $170,000 (sale price), the rental value would be between $1,500 and $1,700 per month; and for thirteen months the rental value should be in the neighborhood of $20,000 or more. This figure should be substituted for the interest figure used by the trial court. This would decrease the loss to the purchaser by more than $5,000 as found by the trial court. The amount of purchaser’s damage then should be $3,845 instead of $8,845 as found by the court. This damage is only 2.2% of the total sales price.
In the case of Carlson v. Hamilton1 a defaulting purchaser sued to recover his excess payments which amounted to 9½% of the purchase price. This court refused to allow recovery on the ground that a loss of 9V2% was not enough to be shocking to the conscience. If 9½% is not shocking, how can 2.2% be considered so? The Plaintiff’s standing to bring the action was neither raised nor considered in that case.
There is another problem as to whether a purchaser of real estate on contract can sue for a return of his payments when he himself is in breach thereof.
The main opinion cites cases where this Court has refused the seller the right to foreclose the interests of a purchaser without considering the equities of the purchaser.
This case is not in equity to foreclose the interests of the purchaser. This is a law action for money had and received. To permit this sort of a case to be considered is to encourage a purchaser to hold an interest in land and if the value thereof does not increase, to breach his agreement to pay, move out, and then sue for a return of his money. See the following cases which are in point: Glock v. Howard and Wilson Colony Co., 123 Cal. 1, 55 P. 713 (1898); Skookum v. Thomas, 162 Cal. 539, 123 P. 363 *375(Cal.1912); Jackson v. Peddycoart, 98 Okl. 198, 224 P. 689 (1924).
In the Jackson ease the court said:
. Assignments Nos. 3 and 4 are based on the refusal of the court to give certain instructions, and assignment No. 5 is based on the giving of certain instructions by the court, and we will consider them all together. The second instruction requested by defendant is:
‘You are instructed that, if you find from the evidence that the plaintiff failed and refused to tender the money to the defendant in payment of said land, in that event you will find for the defendant.’
We are inclined to think that this instruction should have been given. In the case of Tucker v. Thraves, 50 Okl. 691, 151 P. 598, it is held that, where a contract for the sale of land provides for the payment of the purchase price upon the approval of the abstract and the execution and delivery of a deed, each party must comply with the contract; and in the case of Kershaw v. Hurtt, 66 Okl. 117, 168 P. 202, the court says:
‘In case of an executory contract being made for the sale and purchase of lands, the deed to be delivered upon payment of consideration as same becomes due, where the vendee fails to perform his part of the contract, there being no failure, fault, or wrong on the part of the vendor, the vendee cannot recover any money or property advanced under such contract, nor obtain, by way of original action, affirmative relief as to the cancellation of mortgage given on other land to secure a part of the consideration.’
And in discussing this question further in the opinion, the court said:
‘The law does not permit one to take advantage of his own wrong or default. It is well settled by this court and other courts of the highest standing that the, vendee in an executory contract for the purchase of lands, who, after paying part of the consideration under such contract, makes default and refuses to carry out the further terms agreed upon, cannot maintain an action to recover any of the consideration advanced. Helm v. Rone, 43 Okl. 137, 141 P. 678; Snyder v. Johnson, 44 Okl. 388, 144 P. 1035; Hurley v. Anicker, 51 Okl. 97, 151 P. 593. From the authorities cited it is clear that the plaintiff is not entitled to recover the money paid, or to have affirmative relief as to the note and mortgage, unless the defendant’s answer may be considered such a rescission on his part as would entitle the plaintiff to recover.’
I would reverse the judgment in this case and order judgment of no cause of action for the defendant and award him costs.
. 8 Utah 2d 272, 332 P.2d 989 (1958).