Sec 743

Whether a deposit paid on a contract for the purchase of real estate can be recovered back on the purchase falling through, depends upon the terms of the contract.7 Where the purchaser refuses to comply with the terms assented to by him, he can-uot recover back the deposit as such, unless the agreement gives him that right, though he might have an action against the vendor for damages, if the vendor be the party primarily responsible for the failure of the negotiations. The return of the deposit, also, may be excluded by the term3 of the contract.9 But ordinarily when the sale is not perfected through the vendor's fault,1 or the contract is rescinded by the parties,2 the deposit may be recovered back as money had and received.3

Deposit on real estate may be recovered back on failure to make title.

1 Supra, sec 48 a, 282, 520; Dutch V. Warren, 2 Burr. 1010; Fuller V. Little, 7 N. H. 535; Parish V. Stone, 14 Pick. 210; Dill V. Wareham, 7 Met. 438; Hill V. Rewee, 11 Met. 271; Brown V. Harris, 2 Gray, 359; Wheeler V. Board, 12 Johns. 363.

2 Cobb V. Hall, 29 Vt. 510; Thompson V. Gould, 20 Pick. 134; Rice V. Peet, 15 Johns. 503; Abbott V. Draper, 4 Denio, 51.

3 Supra, sec 282 et seq., 293.

4 1 Ch. on Cont. 692, 702; Thornett V. Haines, 15 M. & W. 367; Whitcomb V. Denio, 52 Vt. 382; Bradford V. Manly, 13 Mass. 139; supra, sec 520.

5 Davis V. Hall, 52 Md. 673.

6 Supra, sec 579 et seq.; Jellison V. Jordan, 68 Me. 373.

7 See supra, sec 520.

8 Barrell ex parte, L. R. 10 Ch. 512; Thomas V. Brown, L. R. 1 Q. B. D. 714; see Hudson V. Swift, 20 Johns. 24.

9 Hinton V. Sparks, L. R. 3 C. P. 161.

Sec 744

A party whose name has been forged to a bill, and who pays the bill supposing it to be genuine, may recover back, on discovering the forgery, what he paid, provided there was no such negligence on his part as deprives the party whom he sues of recourse to prior parties.4 Money paid in discounting a bill of exchange, the acceptance of which is forged, may also be recovered back, provided there be no estoppel through negligence;5 and this has been held even where the defendant did not indorse the bill.6 There can also be a recovery in this form of action for money paid for forged railway bonds;7 and for money paid for foreign bonds which at the time of the sale were repudiated by the state which it was pretended had issued them.8 The same distinction is taken with regard to counterfeit bank notes; a party innocently paying out such being liable to the payee for their value,9 though the payee must offer to return the note in a reasonable time, if it be of any value, or else he cannot recover.10 - When the vendor of a bond declines to guarantee its genuineness, though he at the time bona fide believes it to be genuine, he cannot, on its turning out to be a forgery, be compelled to refund, it appearing that at the time of the sale he put the purchaser on inquiry.1 - It has been held in Massachusetts that a purchaser of forged United States bonds which the government redeemed, may maintain against his vendor an action to recover back the money paid before he has repaid the government or returned the bonds to the vendor.2 - Money paid for negotiable paper which is worthless on account of material alterations can also be recovered back;3 and so of money paid for a check which is worthless, provided the holder took prompt measures for the collection of the check, and gave, when necessary, due notice of its dishonor;4 and so of money obtained by discount on a forged bill, even though the defendant did not indorse the bill.5 It has been held, also, that the vendor of a treasury note, which has been paid but subsequently stolen and put in circulation, is liable to the purchaser, in an action of this class, though the indorsement was "without recourse."6

Money paid for worthless securities may be recovered back.

1 Leake, 2d ed. 107; Moeser V. Wis-ker, L. R. 6 C. P. 120; Simmons V. Heseltine, 5 C. B. N. S. 554.

2 Aberaman Iron Works V. Wickens, L. R. 4 Ch. 101.

3 See Pollock, 476; Towance V. Bolton, L. R. 8 Ch. 118; Jones V. Rimmer, L. R. 14 Ch. D. 588.

4 Supra, sec 509-11, 520; Leake, 2d ed. 107; Benj. on Sales, 3d Am. ed. sec 423, 607, 608; Wilkinson V. Johnson, 3 B. & C. 428; Cocks V. Masterman, 9 B. & C. 902; Bank of U. S. V. Bank of Ga., 10 Wheat. 333; Thrall V. Newell, 19 Vt. 202; Terry V. Bissell, 26 Conn. 23; Worthington V. Cowles, 112 Mass. 30; Ross V. Terry, 63 N. Y. 613; Neff V. Horner, 63 Penn. St. 327.

5 Jones V. Ryde, 8 Taunt. 488; Gur-ney V. Womsley, 4 E. & B. 133; Baxter V. Duren. 29 Me. 434; Merriam V.

Wolcott, 3 Allen, 258; Wilder V. Cowles, 100 Mass. 487; Terry V. Bissell, 26 Conn. 23; Aldrich V. Jackson, 5 R. I. 218; Ledwich V. McKim, 53 N. Y. 307; Chambers V. Bank, 78 Penn. St. 205.

6 Eagle Bank V. Smith, 5 Conn. 71; Canal Bank V. Bank of Albany, 1 Hill, N. Y. 287.

7 Westropp V. Solomon, 8 C. B. 345.

8 Young V. Cole, 3 Bing. N. C. 724; see supra, sec 509 - 11.

9 Young V. Adams, 6 Mass. 182; Markle V. Hatfield, 2 Johns. 455; Mudd V. Reeves, 2 Har. & J. 368; and cases cited 2 Ch. on Con. 11th Am. ed. 930.

10 Ibid.; Gloucester Bank V. Salem Bank, 17 Mass. 33; Raymond V. Baer, 13 S. & R. 318; Rick V. Kelly, 30 Penn. St. 527; Rindall V. Bank, 7 Leigh, 617; Simms V. Clark, 11 Ill. 137.