Horn v. Butler

• Decision Date: 18 December 1888
• Citation: Horn v. Butler, 39 Minn. 515, 40 N.W. 833 (Minn. 1888)
• Parties: HORN ET AL. v BUTLER.
• Court: Minnesota Supreme Court

39 Minn. 515

40 N.W. 833

HORN ET AL.vBUTLER.

Supreme Court of Minnesota.

December 18, 1888.

(Syllabus by the Court.)

Defendant contracted to sell and plaintiffs to buy certain real estate, whereupon the latter paid part of the purchase price. The defendant was to furnish an abstract of title, and, if plaintiffs ascertained his title to be unmarketable to such an extent as to warrant them in refusing to complete the trade, and on such ground they should refuse, defendant should return the money paid. In an action to recover such money plaintiffs' complaint contained an allegation that the abstract so furnished failed to show that defendant had any title, marketable or otherwise, to the property; and that plaintiffs thereupon returned the abstract, and refused to proceed. This allegation was not met by the answer. Held, that, as it stood admitted, the plaintiffs were entitled to judgment on the pleadings for the amount paid.

Appeal from district court, Ramsey county; KELLY, Judge.

Action by H. Harcourt Horn et al. to recover of John G. Butler money paid as part of purchase price of certain real estate. Judgment in favor of plaintiffs, and defendant appeals.

D. M. Scribner and F. M. Catlin, for appellant.

Lawler & Durment, for respondents.

COLLINS, J.

After the selection of a jury in the above-entitled action, judgment for plaintiffs upon the pleadings was ordered, upon the ground, as we are informed by the briefs, that it stood admitted by defendant that before the commencement of the action he had sold and conveyed the premises described in the contract between these parties for the sum plaintiffs had conditionally agreed to pay therefor, and for that reason could not retain plaintiffs' money. As we construe the contract, complaint, and answer, it is unnecessary to pass upon the correctness of this view, as the court was clearly right in its conclusion, for another reason. By the terms of the contract, made a part of the complaint, the defendant was to furnish to plaintiffs an abstract of title, and, if the title should be found to be unmarketable to such an extent as to warrant the latter in refusing to complete the trade upon that ground, the money paid by them (for which judgment was ordered) should be refunded. Among the allegations of the complaint is one to the effect that the abstract of title so furnished failed to show that the defendant had any title, marketable or otherwise, to the premises; that plaintiffs thereupon...