Murphin v. Scovell, 41 Minn. 262

Murphin v. Scovell

41 Minn. 262 | Minn. | 1889

Collins, J.

This is an action to recover back the sum of $3,500, said to have been paid by plaintiff upon a contract made with defendant for the sale and conveyance of real property. It is somewhat difficult to discover from the pleadings what issue of fact was presented, for it was admitted that defendant contracted to convey by warranty deed, and was unable to do so because of the existence of a mortgage upon the premises, which defendant had not paid, and by its terms could not pay and discharge. Upon the trial the defendant attempted no defence,suggested by his answer, and virtually conceded that plaintiff was entitled to recover whatever sum F. D. Banning — for whom plaintiff admits he was acting — had paid upon the contract.

It is manifest that plaintiff, upon the trial, based his right to recover $1,500 of the amount in controversy upon a claim that, when defendant acknowledged the receipt of $3,500 as part of the purchase price, when but $2,000 was in fact paid, he directed and requested plaintiff to return to McNair that amount of the sum which McNair had paid upon a contract for the same premises, which he had failed to complete. The court in its charge (manifestly by the consent of all parties) made this issue of fact the principal one to be determined by the jury, as to the sum of $1,500. It charged that this amount had been forfeited bv McNair, and clearly belonged to the *264defendant, unless he had by some subsequent promise agreed to pay it to the plaintiff. It expressly refused to charge, as requested by plaintiff, that if, when crediting and allowing to plaintiff on his contract of purchase the amount previously paid by McNair, the defendant understood and intended that plaintiff should reimburse McNair, and that plaintiff actually did so, (of which there was proof,) the plaintiff could recover the amount so paid. The tenor of other words used by the court in reference to the amount which the plaintiff claimed he had returned to McNair at defendant’s request was to the effect that the former could not recover it unless the defendant had expressly and in words promised to pay it to plaintiff. We are of the opinion that this view was too narrow and restricted. The defendant had received of McNair the sum of $1,500, which the latter chose to forfeit. It was in the defendant’s power to keep this money, and declare the trade at an end. But this he did not do. He did not retain the money then in his hands without condition, but allowed and credited it to his own agent or broker, (who had already made the sum of $500 in commissions for making a sale to McNair,) as part of the purchase price for the same premises, and upon another contract of sale. It might seem somewhat singular that tbe defendant should surrender and donate to his agent, the real plaintiff in this action, a sum of money which seems to have been bis absolutely, unless there had been an understanding between the parties that plaintiff, for some reason, should repay and reimburse McNair. We think the jury should have been instructed that upon' this feature of the case they might give weight to all of the facts and circumstances appearing in the testimony, and that plaintiff’s right to recover.did not depend upon defendant’s unqualified promise to pay, nor upon a positive promise upon his part to refund, should the plaintiff return the sum of $1,500 to McNair.

In regard to plaintiff’s right to recover the $2,000 paid to defendant on March 22d, and acknowledged in defendant’s unilateral contract of that date, the court charged, in substance, that if the jury should find that it was actually paid in consideration óf an extension of the McNair contract for 30 days, and that the receipt or contract was subsequently given without any consideration, “or that no money *265passed at the time of the extension, and there was no consideration for the receipt, * * * the plaintiff cannot recover at all.” The court failed to state under what circumstances the plaintiff could recover the $2,000, and expressly declined to charge whether or not the plaintiff was entitled under his contract to a title free and clear of the mortgage lien. There does not seem to have been any exception to this part of the charge as actually given, or to the failure of the court to charge upon matters which it seems to us were material .and important. If there was no consideration for the execution and delivery of the contract of date March 22d, the plaintiff ought not to .recover; but if, when it was executed and delivered, the defendant understood and expected the plaintiff to reimburse McNáir, and the latter did so in pursuance of that understanding and expectation, he •certainly would be entitled to recover the amount so paid at least. And if, on the day of the execution and delivery of defendant’s contract, or upon a prior day, the plaintiff, in consideration of such ex•ecution and delivery, paid to defendant the sum of $2,000, he is •certainly entitled to recover that amount, providing the defendant is unable to convey in accordance with his contract, by the terms of which he stipulated that the title to the premises should be good or susceptible of being made good, and, further, that he would convey by warranty deed. If land contracted to be conveyed turns out to be incumbered, the vendor cannot enforce the contract unless the charge be small and immaterial. Guynet v. Mantel, 4 Duer, 86; Marsh v. Wyckoff, 10 Bosw. 202; Wallace v. McLaughlin, 57 Ill. 53. And without these stipulations the plaintiff was entitled to a •conveyance which would vest in him a good title, clear of all defects •and incumbrances. Drake v. Barton, 18 Minn. 414, (462;) Donlon v. Evans, 40 Minn. 501, (42 N. W. Rep. 472.) The defendant could not with propriety have given a warranty deed with the usual cove-^ nants, and, in the absence of all claim that his contract so to do ■was fraudulently obtained, he must be held to its performance.

Order reversed.