Murphin v. Scovell

• Decision Date: 26 November 1890
• Citation: 44 Minn. 530,47 N.W. 256
• Parties: MURPHIN v SCOVELL.
• Court: Minnesota Supreme Court

44 Minn. 530

47 N.W. 256

MURPHINvSCOVELL.

Supreme Court of Minnesota.

Nov. 26, 1890.

(Syllabus by the Court.)

1. A person in whose name a contract is made for the benefit of another may sue on it in his own name. Gen. St. c. 66, § 28.

2. Evidence considered, and held not to justify the verdict.

Appeal from district court, St. Louis county; STEARNS, Judge.

W. W. Billson and H. J. Horn, for appellant.

White, Reynolds & Schmidt, for respondent.

MITCHELL, J.

The nature of this action, and the history of the transaction out of which it grew, will sufficiently appear from the report on a former appeal, (41 Minn. 262,43 N. W. Rep. 1,) although some of the pleadings have been since amended, and the evidence on the last trial is on some points somewhat different from that on the first trial. The contract declared on was made in the name of plaintiff, but for the benefit of one Banning. The statute provides that in such a case the action may be prosecuted by the party in whose name the contract is made. Gen. St. c. 66, § 28; Cremer v. Wimmer, 40 Minn. 511,42 N. W. Rep. 467. It stands as an established fact in the case that defendant was in default on his contract, being unable, by reason of an outstanding mortgage, to give good title to the premises in question, when plaintiff tendered performance, and demanded a deed. Therefore it follows that plaintiff was entitled to recover back whatever purchase money had been paid on the contract. The verdict was for defendant, and the question is whether it was justified by the evidence. An examination of the record satisfies us that, while there is a seeming conflict in the testimony, this is apparent and not real, not being upon any point that is material, or that at all goes to the legal effect of the evidence. It appears that defendant agreed with Banning that, if the latter would effect a sale of the premises described in the complaint for $20,000, he would allow him $500 commission. Thereupon Banning got up an association, called the “McNair Syndicate,” of which he himself was a member, to purchase the property, which was effected, and a contract executed by defendant, February 26, 1887, to McNair, as the representative of the syndicate, in which the receipt of $2,000 earnest money is acknowledged by defendant, and by the terms of which he agreed that at McNair's request at any time on or before March 22, 1887, he would execute to him, or to such person or persons as he might direct, a warranty deed. McNair was to pay $4,666.66 more of the purchase money on delivery of the deed, and the balance in two equal payments in one and two years, respectively, with interest at 8 per cent., secured by mortgage on the premises. Banning paid over to defendant $1,500, the remainder of the $2,000, the receipt of which is acknowledged in the contract, being the $500 commission to which Banning was entitled. At this point occurs the conflict referred to between the testimony of Banning and plaintiff on the one side, and that of defendant on the other. All agree that $2,000 on the purchase money was paid by Banning to defendant on March 22, 1887, and it is the undisputed evidence that this was Banning's own money. Plaintiff and Banning swear that on this date, it being suggested that McNair or the McNair syndicate would not be prepared to fulfill the terms of the contract, and defendant being willing to convey to any one else, provided he got his money, the “Murphin contract” was executed, by which defendant agreed to convey to Murphin for the same price, ($20,000,) the times of payment being extended however, and that the $2,000 was then and there paid by Banning upon the new contract, and that it was further expressly agreed that Banning should refund to McNair the $1,500 paid in February on the first...