EATON V. REDICK. Hays v. Hart, 42 Barb. 58; Chrisman v. Miller, 21 Ill. 236; McCoy v. Bigby, 6 Ohio, 134. No counsel appeared on the other side. MASON, Ch. J. The errors assigned in this cause are, that upon the evidence and pleadings in the case the court erred in rendering judgment for the defendant in error; that the judgment is contrary to law; that the judgment should have been for the plaintiff, and that the court erred in overruling the plaintiff's motion for a new trial. The facts of the case are as follows: On the 19th of April, 1865, John I. Redick sold a lot situated in Omaha city, to Sarah Eaton, wife of Emerson H. Eaton, for the consideration of sixteen hundred and fifty dollars. Eaton paid on said purchase four hundred dollars, and the balance was to be paid in four equal payments in three, six, nine and twelve months. At the same time Redick executed a deed for the lot to Mrs. Eaton. By mistake or design, on the part of Emerson H. Eaton, only three notes for the deferred payments were delivered to Redick. He deposited the notes which were delivered to him and the deed for the lot with Kountze & Brothers, of Omaha, to be delivered to Eaton when all the purchase money was paid. No payments were made on the lot after the first, although the same were often requested. On the 13th of January, 1866, Redick sold the lot to Mrs. More for the sum of twenty-two hundred dollars. This action was brought by Eaton and wife to recover the amount paid on the lot and interest. The case was tried before the court below, and Eaton and wife re covered a judgment for the sum claimed by them. The amount which Eaton and wife were to pay for the lot was sixteen hundred and fifty dollars; the amount EATON v. REDIOK. which Redick received on the re-sale was twenty-two hundred dollars. The sale to Eaton and wife was made April 19, 1865, and the re-sale to Mrs. More on the 13th of January, 1866. The failure of Eaton and wife to comply with their contract, and make the payments at the time agreed, did not terminate the special contract, but left it optional with the other party to do so. He exercised this option by the sale to Mrs. More, putting it beyond his power to fulfill his contract with Eaton, and this, too, before the last payment had fallen due. Then, on the failure of Eaton to pay, Redick chose to rescind the contract and put an end to the same, so that when this action was brought there was no subsisting contract between the parties on which the money sought to be recovered was paid. It may be admitted that if the special contract on which the money was paid was a subsisting contract between the parties, and the defendant Redick had at all times performed his part of the contract, or stood ready to do so, and at the present time insisted on performance, and the failure to perform was exclusively the fault or neglect of Eaton and his wife, they could not recover. But that is not the case. The plaintiffs failed to fulfill their contract, and the defendant chose to rescind the same, and the plaintiffs acquiesced in the choice of the defendant. Then there was no subsisting contract between the parties upon which the money sought to be recovered was paid. Redick admits, in his answer, "that when the first note became due, he called upon Kountze & Brothers, with whom he had left the notes for collection, and directed them to deliver back to said Eaton his notes, leaving them for that purpose." He is bound by this admission in his answer, and it is decisive of this case. When there is no contract subsisting between the parties, but the same has been put an end to by the election or refusal of the defendant to perform, the other party may recover back any money paid in part perform EATON v. REDICK. ance, with interest from the date of the rescission of the contract.-Raymond v. Beamand, 12 Johns. 274; Gillet v. Clemens, 5 Ib. 85; Green v. Green, 9 Cow. 46; Chitty on Contracts, 741; Harris v. Bradley, 9 Ind. 168. It may be stated, as a principle of the common law, that when money has been paid on a special contract, an action for money had and received to recover back the same, could not be maintained if it has been in part performed, and the plaintiff derived benefit from the same. Chitty on Contracts, 5th ed. 627, and cases there cited; 1 Chitty Pleadings, 9th ed. 355. The case referred to in 13 Johns., Ketchum v. Everston, relied upon by the plaintiff in error, is not applicable to this case; neither is it at variance with the principles here laid down. This determines the case. The judgment must be affirmed with costs. Judgment affirmed. SMITH V. SAHLER. Smith v. Sahler. 1. APPEAL OR PETITION IN ERROR to final order. An order to be final and subject to review in an appellate court upon appeal or petition in error, must dispose of the whole merits of the case, and leave nothing for the further determination of the court. It must affect a substantial right and determine the action. 2. An order or decree which leaves the law or equity of the case, or some material question connected with the merits of the controversy, for future determination, is interlocutory, and is not subject to review in any appellate court on appeal or petition in error. 3. An order dissolving an injunction, when the same is an incident of the action, and the substantial rights of the parties remain undetermined, is interlocutory and not appealable. This was a motion to dismiss an appeal. The facts suf ficiently appear in the opinion of the court. John H. Sahler, the defendant, in person for the motion. T. M. Marquette, contra. MASON, Ch. J. The error complained of in this cause is the order of the court below, dissolving an injunction which had been al lowed in the cause by William D. Gage, Probate Judge of Cass County. The defendants in error now move to dismiss the proceeding on the ground that the order dissolving the injunction was not a final order within the meaning of section five hundred and eighty-two of the Civil Code. The prayer of the bill in this case is that a certain judg ment at law obtained against John Hughes and John H. Sahler, and assigned to the plaintiff, be set off against a judgment obtained by defendant Sahler against the plaintiff aforesaid; and that the defendant Sahler, and Joseph W. Johnson, sheriff of the county of Cass, be enjoined SMITH V. SAHLER. from collecting the judgment obtained by Sahler against the plaintiff, and for such other and further relief as equity and good conscience may require. A writ of error or an appeal lies only to a final order or decree; and by section five hundred and eighty-one a final order is thus defined: "An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, is a final order which may be vacated, modified or reversed as provided in this title." A decree to be final must dispose of the whole merits of the case, and leave nothing for the further consideration of the court. An order is final when it affects a substantial right and determines the action. An order is interlocutory which dissolves an injunction when the same is an incident of the action, and the substantial rights of the parties involved in the action remain undetermined. When no further action of the court is required to dispose of the cause pending, it is final; when the cause is retained for further action, as in this case, it is interlocutory.-Kelly v. Stanbury, 13 Ohio, 408. A writ of error lies only to a final judgment or order of the District Court, or board, or tribunal.-Kelly v. Hunter, 12 Ohio, 216; Herf v. Shultze, 10 Ohio, 263. An order or decree of a court which leaves the law or equity of the case, or some material question connected with the merits of the litigation or controversy, for future determination, is interlocutory, and not a final order or decree.-Leaf v. Hewitt, 1 Ohio St. 54; Longworth v. Sturges, 6 Ohio St. 143. The motion to dismiss the proceeding in error in this cause must be sustained. Motion sustained. |