Head v. Sanders
Decision Date | 07 November 1914 |
Docket Number | 806. |
Citation | 189 Ala. 443,66 So. 621 |
Parties | HEAD v. SANDERS. |
Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; E.C. Crowe, Judge.
Action by John Sanders against J.D. Head for money had and received. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals. Reversed and remanded.
Harsh Beddow & Fitts, of Birmingham, for appellant.
W.M Woodall, of Birmingham, for appellee.
The principle of law is well recognized that where the purchaser pays to the seller a part of the purchase price of real estate, on a contract by which the seller is not bound to convey to the purchaser, such purchaser may recover the money so paid in an appropriate action. Nelson v. Shelby Manufacturing & Improvement Co., 96 Ala. 515, 11 So 695, 38 Am.St.Rep. 116.
In count C of the complaint it is alleged that the plaintiff and the defendant entered into a contract, which is in the following words:
Said count also alleges that the instrument is void as a contract for the sale of said land, in that it fails to state the location of said lots, as is required by the statute of frauds; that said instrument fails to state the state or county in which said lots are located; that plaintiff has never had control or possession of said lots.
The facts alleged in said count, together with the provisions of the contract, do not show a case wherein the plaintiff is entitled to recover on the principle above announced, and the demurrers to this count should have been sustained. In the case of Nelson v. Shelby, etc., Co., supra, relied upon by the plaintiff below, the contract was as follows:
The court, in passing upon this instrument, says:
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