42 Minn. 267 | Minn. | 1890
This action is in the nature of assumpsit for money had and received, which in general may be maintained by showing that the defendant has received money of the plaintiff which, in equity and good conscience, he ought to return or pay over. The
In this contract, it was stipulated that out of the 40 acres which should, in a proposed division of the quarter-section, be set apart to the defendant, the plaintiff, vendee, should have 10 acres in a body, and of average quality and value with the whole. This language conferred upon the vendor the absolute right to select and convey any one of the 10-acre tracts in the 40 which answered the conditions of the contract in respect to quality and value. If he did this, the agreement was complied with in. every particular, and the vendee would be obliged to accept. Should the defendant vendor refuse altogether, or should he select an inferior parcel of land, — one which did not answer the requirements, — there could have been no difficulty in ascertaining plaintiff’s damages for the breach, because the number of acres was stated, and the location and quality fixed, with sufficient certainty for all practical purposes, in an action at law. It must be remembered that a contract in regard to real estate may be binding,
From the testimony, it appears that subsequent to the last-mentioned payment the parties agreed upon and designated the particular tract of 10 acres which plaintiff was to accept in satisfaction of the contract, and, although it was the act of both parties, it certainly can be treated as a selection by the defendant vendor, who thereafter, and prior to the commencement of this action, duly tendered a warranty deed thereof to plaintiff, with an abstract of title showing that he had a perfect title in fee to the tract so conveyed. The plaintiff refused the deed, and brought this action, obviously upon the the
Order affirmed.