See CORBIN § 946, at 925-27; see alsoSchwartzv. Syver, 264 Wis. 526, 531-32, 59 N.W.2d 489, 492 (1953). The trial court's restitution of the Morgans' purchase money was an appropriate recovery.
To place blame on Levin for something that it not only had no control over, but was also in actuality the fault of the DRA, is an argument that we reject. The DRA next claims that, in addition to the factual basis noted above, there is a legal basis for its argument that Levin is not entitled to the earnest money. It cites, as support for its position, Schwartz v. Syver, 264 Wis. 526, 529, 59 N.W.2d 489 (1953) ( quoting 55 Am.Jur., Vendor and Purchaser, § 535, p. 927), which notes: "So long as the vendor is not in default and is willing and able to perform, the purchaser cannot wrongfully refuse to complete the transaction and recover what he has paid toward the purchase money." The DRA fails to consider that the relationship in this case was not the typical buyer-seller relationship that this statement envisions.
" Seekinsv. King, 66 R.I. 105, 110, 17 A.2d 869, 871. By 1953 the Supreme Court of Wisconsin was able to state that its holding was "in accord with the trend of modern decisions which recognize that when the result of retention of moneys paid upon a contract by a vendee who later repudiates his obligation is a clear unjust enrichment of the vendor, the vendor may be required to return such part of the payments as exceeds the loss which the vendee's default causes him." Schwartz v. Syver, 264 Wis. 526, 531, 59 N.W.2d 489, 492. And in Wilkins v. Birnbaum, 278 A.2d 829, 831 (1971), the Supreme Court of Delaware recognized that "a defaulting buyer [who] can prove that the deposit exceeds in amount the actual damages resulting from the breach [can] recover back the excess, but the burden of proving this is placed on him."
See, e.g., Hook v. Bomar, 320 F.2d 536, 541 (5th Cir. 1963); Amtorg Trading Corporation v. Miehle Printing Press Mfg. Co., 206 F.2d 103, 108 (2d Cir. 1953); Honey v. Henry's Franchise Leasing Corporation, 64 Cal.2d 801, 803, 415 P.2d 833 (1966); Freedman v. Rector, Wardens Vestrymen of St. Matthias Parish, 37 Cal.2d 16, 20, 230 P.2d 629 (1951); Haas v. Crisp Realty Co., 65 So.2d 765, 768 (Fla. 1953); Nichols v. Knowles, 87 Idaho 550, 556, 394 P.2d 630 (1964); Graves v. Cupic, 75 Idaho 451 456-59, 272 P.2d 1020 (1954); Woodliff v. Al Parker Securities Co., 233 Mich. 154, 156, 206 N.W. 499 (1925); Newcomb v. Ray, 99 N.H. 463, 467, 114 A.2d 882 (1955); Massey v. Love, 478 P.2d 948, 950-51 (Okla. 1971); DeLeon v. Aldrete, 398 S.W.2d 160, 163-64 (Tex. 1966); Perkins v. Spencer, 121 Utah 468, 475-77, 243 P.2d 446 (1952); Schwartz v. Syver, 264 Wis. 526, 531, 533, 59 N.W.2d 489 (1953); and see Restatement (Second), Contracts 388 (Tent. Draft No. 14, 1979).
But the great weight of authority which we choose to follow allows recovery to a defaulting buyer upon his showing that the payments made by him exceed the amount of the seller's damages. Freedman v. Rector, 230 P.2d 629 (Cal. 1951); Harriman v. Tetik, 366 P.2d 486 (Cal. 1961); Honey v. Henry's Franchise Leasing Corp. of America, 415 P.2d 833 (Cal. 1966); Anaheim Company v. Holcombe, 426 P.2d 743 (Ore. 1967); Malmberg v. Baugh, 218 P. 975 (Utah 1923); Schwartz v. Syver, 59 N.W.2d 489 (Wis. 1953); Corbin on Contracts, Vol. 5A, §§ 1122-1124, 1129-1135 (1964); 40 Yale L.J. 1013 (1931); Restatement, Contracts, § 357 (1932). Even a wilfully defaulting vendee may recover the excess of his part payments over the damages caused by his breach.
We conclude the description in the contract was too indefinite to satisfy the statute of frauds and the parol evidence properly considered could not make it reasonably certain. The trial court, viewing the evidence as presenting the question of whether a vendee in default of a valid contract could recover his down payment, relied on Schwartz v. Syver (1953), 264 Wis. 526, 59 N.W.2d 489. That case adopted the more-liberal rule of allowing the defaulting vendee the right, with some limitation, to recover so much of his down payment as he could show amounted to unjust enrichment of the seller. In so doing, we stated the majority rule of denying recovery applied to a vendee of a contract void under the statute of frauds, relying on 55 Am. Jur., Vendor and Purchaser, p. 927, sec. 535.
The claimed right to return of the moneys paid is grounded on unjust enrichment. As authority for such position, the plaintiffs cite Schwartz v. Syver (1953), 264 Wis. 526, 59 N.W.2d 489. However, the distinction between that case and this one is that in the Schwartz Case we were dealing with a contract for sale of realty and here we have options. It is stated in 8 Thompson, Real Property (perm. ed.), p. 505, sec. 4569:
This, appellants claim, will unjustly enrich respondent by some $225,000, less interest accruing after June 1, 1959. Appellants argue that the "equitable right of the defaulting vendee to a remedy of unjust enrichment has been gaining recognition in many jurisdictions," and suggest that this court approved the principle in Schwartz v. Syver (1953), 264 Wis. 526, 59 N.W.2d 489, and Long Investment Co. v. O'Donnell (1958), 3 Wis.2d 291, 88 N.W.2d 674. In the Long Investment Co. Case, defendant agreed in writing to sell land to plaintiff.
31 A.L.R. 2d, p. 24. The American Law Institute recognizes the principle presented by the appellants in its famous section 357 of Restatement, Contracts, which apparently was prepared by Professor Corbin in collaboration with Justice Cardozo. 5 Corbin, Contracts, sec. 1135, n. 1. This section has been accepted in the Federal Courts, and most of the State Courts that have relaxed from the common-law rule use it as a standard. Amtorg Trading Corp. v. Miehle, etc. (C.A. 2nd) 206 F.2d 103; Newcomb v. Ray (N.H.), 114 A.2d 882; Schwartz v. Syver (Wis.), 59 N.W.2d 489, 492; Woodliffe v. Al Parker Securities Co. (Mich.), 206 N.W. 499; Freedman v. Rector, etc. (Cal.), 230 P.2d 629. This Court recognized the modern trend of the law in this respect in the Lewis case, supra, 203 Md. 448, but decided it had no application to the facts of that case. Interesting and enlightening articles upon the subject are listed below in a footnote.
To allow the defendant seller, or his agent, to retain the same would constitute an unjust enrichment. In Schwartz v. Syver (1953), 264 Wis. 526, 531, 59 N.W.2d 489, it was intimated that even a buyer who has repudiated the contract may be allowed to recover the down payment, if retention of the same would result in an unjust enrichment of the seller. The trial court, therefore, properly included the amount of the down payment as part of the plaintiff buyer's damages.