Summary
In Hardy v. Candelain, 204 Miss. 328, 37 So.2d 360, it was held: "We pretermit discussion of the special demurrer, as it is procedural matter and cannot be brought before us for appellate decision on an interlocutory appeal."
Summary of this case from Prime v. SmithOpinion
November 8, 1948.
1. Appeal — interlocutory.
An interlocutory appeal to settle the controlling principles of the case is not allowable when the principles applicable to the suit have already been well settled and no difficulty as to their application arises. Section 1148, Code 1942.
2. Specific performance — oral agreement.
Specific performance of an oral contract for the sale of lands cannot be ordered, but the remedy of the purchaser in such a case is an action for the recovery of the purchase money paid under the contract.
3. Appeal — special demurrer.
Action of the court on a special demurrer is procedural and is not reviewable on an interlocutory appeal.
Headnotes as revised by Smith, J.
APPEAL from the chancery court of Yalobusha County, Second District; HERBERT HOLMES, Chancellor.
Stone Stone, for appellant.
Appellant contended that it was not enough for the complainant to allege in general terms that the defendant had failed and refused to carry out the contract but that in order to put the defendant in default the complainant must aver in terms of fact, that he, the complainant, had offered to do and stood able, ready and willing to do everything on his part which the contract required him to do, for the reason that without such a showing the defendant would not have been required to do anything on his part, even had there been an adequate written contract, and that although the present contract was oral non constat the defendant would nevertheless have performed it on his part had the complainant offered and been ready to do what was required of him. No authorities cited by appellant.
John Horan, for appellee.
When the bill charged that he, complainant, paid the defendant $1000.00 as a payment, under oral contract, for the purchase of land and that after the payment thereon, the defendant failed and refused to complete the transaction, it charged a cause of action and neither a special or a general demurrer would lie, for the reason such a demurrer in either event admits the allegations made in the bill. And such a charge if shown would entitle the complainant to a recovery of his money, because, under the statute of frauds, he could not compel specific performance. If the agreement is within the statute of frauds, and therefore, not binding on the defendant, the complainant, nevertheless has the right to recover the value of his services, and the money advanced by him to the defendant under the agreement. Carter v. Weatherspoon, 156 Miss. 597, 126 So. 388; Ellis v. Berry, 145 Miss. 652, 110 So. 211; Singletary v. Ginn, 153 Miss. 700, 121 So. 820; 27 C.J. 363.
In Milam v. Paxton, 160 Miss. 562, 134 So. 171, it was held that, vendee under parol contract for the sale of land may recover payments made where vendor refused to complete the transaction. And in Allendale Heights v. Eyrich, 156 Miss. 142, 125 So. 706, it was even held, that "Purchaser, not being required to accept deed not containing condition respecting title as verbally represented, could recover money paid."
From appellant's brief we gather that he thinks we should sue for specific performance, but we charged that he refused to complete the transaction, and that because the contract was an oral contract, we could not force specific performance. Then if he is sincere he should have answered and tendered the deed to complete the transaction. He did not do this, then he admits that there was such an oral contract, and that $1000.00 was paid on the sale contract and retained by him and that he refused to either complete the transaction or refund the money.
This case is before us on an interlocutory appeal from the Chancery Court of the Second District of Yalobusha County; and the errors assigned are overruling of a general and a special demurrer to the original bill.
Appellee was complainant and the son-in-law of appellant, the defendant, whom he was visiting at the time the cause of the litigation arose. The original bill, where pertinent and necessary for decision, averred that the parties agreed orally that appellant would convey his home and a half interest in his mercantile business to appellee for the consideration of $5,000, who was to, and did, deposit $1,000 thereof in a Water Valley Bank to the credit of appellant. This was made as a general deposit.
The bank was also made a party, in an apparent effort to establish a trust relationship, but its demurrer to the original bill was sustained by the Chancellor, no cross-appeal was taken, and that issue is not before us.
The bill further charged that appellant, defendant, failed and refused to comply with the agreement, or to refund the $1,000 deposited to his credit by appellee as a part of the consideration for compliance therewith. There was an averment that the $1,000 was obtained by appellant from appellee "by fraud and that the complainant was over reached."
The prayer of the bill was for a "decree directing the said Bank and the said W.D. Hardy to pay the said money to complainant. And he prays for general relief." (Hn 1) The appellant's general demurrer charged that there "is no equity on the face of the original bill." As stated, supra, the Chancellor overruled it and granted appellant an appeal to this Court to settle all of the controlling principles of the case. Sec. 1148, Code 1942. The principles of the case have long been settled in the State, and hence no appeal was necessary to settle them here, and the granting of the appeal accordingly was improvident.
(Hn 2) Appellee could not sue for specific performance, since the oral contract was unenforceable under the statute of frauds, but his remedy was recovery of the money he paid on the consideration for the broken contract. Carter v. Witherspoon, 156 Miss. 597, 126 So. 388; Ellis v. Berry et al., 145 Miss. 652, 110 So. 211; Singletary v. Ginn, 153 Miss. 700, 121 So. 820.
This Court has passed specifically upon the point upon which this issue turns, saying: "It is a familiar principle of law that where payments are made by a purchaser under a parol contract for the sale of land, and the vendor refuses to complete the transaction by the execution of the necessary deed, the purchaser may recover the amount or amounts paid as for money had and received . . ." Milam v. Paxton et al., 160 Miss. 562, 134 So. 171, 172. That is the kind of case, according to the original bill, which is before us, since the demurrer admits the facts therein set forth. The charge of fraud, it will be seen, is therefore immaterial and surplusage.
(Hn 3) We pretermit discussion of the special demurrer, as it is procedural matter and cannot be brought before us for appellate decision on an interlocutory appeal.
We, therefore, regard the action of the Chancellor as correct in overruling the appellant's general demurrer to the original bill; but we consider it error for him to have granted an interlocutory appeal in this case, for the reason that we have nothing satisfactory before us that decision here will be effective to furnish a definite guide throughout the case on the merits thereof. An additional reason is that the principles applicable to the suit, as set out in the original bill, are already clearly settled, and no difficulty of their application here arises. Stirling et al. v. Whitney Nat. Bank et al., 170 Miss. 674, 150 So. 654.
It is, therefore, ordered that the appeal be dismissed.
Appeal dismissed.