Murphin v. Scovell
| Decision Date | 17 July 1889 |
| Citation | 43 N.W. 1,41 Minn. 262 |
| Parties | Benton Murphin v. Josiah B. Scovell |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county, to recover $ 3,500 alleged to have been paid on a contract of purchase of real estate, which the defendant (vendor) had failed to perform. At the trial, before Stearns, J., it appeared that prior to February 26, 1887, one Banning had negotiated a sale of the same real estate to one McNair, at the price of $ 20,000, under an agreement with defendant for a commission of $ 500. On February 26, 1887, a contract of sale was made between defendant and McNair, who paid $ 2,000 of the price out of which Banning retained his commission, and paid the balance, $ 1,500, to defendant. By the terms of this contract McNair was to pay $ 4,666.66 on or before March 22d, and on such payment the defendant would execute and deliver to him or to such person as he should direct a warranty deed with full covenants. On or shortly after March 22, 1887, plaintiff paid to defendant $ 2,000, and a written contract was executed between them, bearing date on that day, whereby the defendant acknowledged the receipt from plaintiff of $ 4,000 as earnest-money on account of the purchase of the same land at the price of $ 20,000, on terms of payment of $ 2,666.67 on delivery of deed, and the balance at times specified. This contract provided for "the form of conveyance to be warranty deed delivered within seven months from date, upon receipt of cash payments," etc. Besides the $ 2,000 paid defendant, the plaintiff also paid $ 1,500 to McNair, both payments being made with moneys of Banning, for whom the plaintiff was acting throughout the transaction. At the trial, the plaintiff testified that the payment to McNair was made at defendant's request, by way of refunding to him the amount which defendant had received from him on his contract. On the other hand, the defendant testified that the transaction with plaintiff was a mere extension of the McNair contract; that the money paid him by plaintiff was paid on that contract; that he did not know that plaintiff's name was in the second contract; and that he never authorized any repayment to McNair. The instructions of the court and other matters of evidence are stated in the opinion. The defendant had a verdict, and plaintiff appeals from an order refusing a new trial.
Order reversed.
Wm. W Billson and H. J. Horn, for appellant.
White Shannon & Reynolds, for respondent.
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 by McNair, and clearly belonged to the defendant, unless he had by...
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