
    Thomas H. Pressnell vs. John Lundin.
    November 29, 1890.
    Vendor and Purchaser — Oral Contract — Refusal to Convey — Recovery of Price Paid by Purchaser. — A complaint showing a payment-by the plaintiff to the defendant of the price of land, under a verbal contract on the part of the defendant to convey the same, and showing the refusal of the defendant to so convey, held to state a cause of action at least for the recovery of the money paid.
    Appeal by defendant from an order of the district court for St. Louis county, Ensign, J., presiding, refusing a new trial, after trial by the court and judgment ordered for plaintiff vesting in him title in fee to-the 40 acres of land mentioned in the opinion.
    
      W. E. Wright, for appellant.
    
      Draper é Davis, , tor respondent.
   Dickinson, J.

At the trial of this cause the defendant objected? to the introduction of any evidence under the complaint, upon the-ground that it did not state facts sufficient to constitute a cause of action; and, at the conclusion of the plaintiff’s evidence, it was.moved that the case be dismissed for the same reason. The only error assigned by the defendant upon this appeal from an order refusing a new trial is that the court erred in ruling adversely to the defendant in the two particulars above specified. The sole question thus raised is whether the complaint stated facts entitling the plaintiff to any relief. This brief statement of what is more fully set forth in the complaint will be sufficient: The plaintiff and defendant made an agreement orally to purchase a certain tract of 120 acres of land from one Miller. The plaintiff was to pay $200 of the purchase price, and the defendant the remainder, $1,440, which they did do. The .conveyance of the whole land should run to defendant, but'the deed should be delivered to one Swanstrom, to be held by him without being recorded until the defendant should execute to the plaintiff a conveyance of a certain 40 acres, párt of the same lands. Simultaneously with such latter conveyance, the deed of Miller, in the hands of Swanstrom, was to be delivered to the defendant. The deed from Miller to the defendant was executed and delivered to Swanstrom, in accordance with the agreement. The defendant refused to convey the 40 acres to the plaintiff. The defendant, with intent to defraud the plaintiff, procured from Miller a second deed of conveyance to himself of the whole premises, and placed the same on record, and has never repaid to plaintiff the $200 of the purchase price paid by him. The defendant relies upon the invalidity of the contract, because it was not in writing. Whether the plaintiff acquired any rights in respect to the land itself which a court of equity might recognize and •enforce, need not be considered. Even though he-did not, he was at least entitled, upon the refusal of the defendant to perform the agreement, to recover the purchase price paid by the plaintiff. Bennett v. Phelps, 12 Minn. 216, (326;) Taylor v. Read, 19 Minn. 317, (372;) Wyvell v. Jones, 37 Minn. 68, (33 N. W. Rep. 43.) The complaint, therefore, did set forth a good cause of action, at least for the recovery of the $200, and the rulings of the court were correct.

Order affirmed.  