98 Minn. 489 | Minn. | 1906
This is an appeal from an order overruling a demurrer to the 'complaint. James A. Jenkins and C. W. Robinson, the defendants below, were doing business as partners under the name of the Red River Valley Rand & Loan Company. On September 2, 1903, they entered into a written contract with Mary Heinrich, the respondent, by the
The parties of the first part agree to sell the within described land at a net profit of $500 for the party of the second part on or before one year from date, and, if not sold the parties of the first part agree to refund the down payment of $1,000 and $500 additional to the party of the second part.
The complaint alleges that the plaintiff paid the defendants the sum of $1,000 on September 2, 1903, on account of the purchase price of the said land; that the defendants have not sold the said land, although she has demanded that they sell the same; and that defendants have not refunded or repaid the plaintiff the said sum of $1,000, or the additional sum of $500, as provided in the contract. Plaintiff has demanded the payment of said sums, has tendered to defendants a proper release' or conveyance of her rights in said land, and has “in all things performed all and singular the provisions of said contract on her part.” Judgment is demanded for the sum of $1,500 and interest thereon since September 2, 1903.
To this complaint the defendant Robinson demurred on the ground that it appears conclusively from the complaint that the transaction was not a sale of real estate, but a loan of money by Heinrich to Jenkins and Robinson, and that it was put in the form of a sale as a device to evade the usury laws.
The demurrer was properly overruled.. It does not conclusively appear from the complaint that the transaction was a loan of money, instead of a sale of real estate. It may be that evidence of the circumstances surrounding the execution of the contract will show that
Order affirmed.