FREEMAN v. PAULSON.

[107 Minn. 64, 119 N. W. 651.]

VENDOR OF LAND-Right to Recover Purchase Price.-A vendor of land cannot recover from his vendee by an ordinary action at law the purchase price stated in a written contract. (p. 439.)

VENDOR OF LAND—Right to Specific Performance.—Where parties make a mutual contract for the sale of real estate, and the vendor covenants on his part to convey the land, and in consideration thereof the vendee promises to pay the purchase price, and there is nothing in the contract which makes it invalid or objectionable in its nature, nor in the circumstances connected with it, equity regards the vendee as the beneficial owner of the premises, even though he has not paid the purchase price; and the vendor has a right to enforce payment of the purchase money by a suit in equity against the vendee's equitable estate in the land, instead of by an ordinary action at law to recover the debt; and the vendor may proceed to enforce specific performance by such suit, whereby the vendee's equitable estate under the contract is sold in pursuance of a judicial decree, which will operate as an assignment of the vendee's rights under the contract, and whereby it would not operate as a cancellation of the contract itself. Abbott v. Moldestad, 74 Minn. 293, followed and applied. (p. 440.)

DEMURRER—Discrepancy Between Summons and Complaint. A demurrer to a complaint on the ground that it fails to state facts sufficient to constitute a cause of action does not reach discrepancies between the relief to which the complaint may entitle and the prayer in the summons. (p. 440.)

(Syllabi by the court.)

John J. Isker, for the appellant.

H. H. Dunn, for the respondent.

65 JAGGARD, J. Plaintiff and appellant brought this action to recover the sum of twelve hundred dollars, and interest upon a written executory contract for the sale of real estate. Defendant and respondent demurred to the complaint upon the ground that the facts stated did not constitute a cause of action. This appeal was taken from the order sustaining that demurrer.

The summons demanded a money judgment, and no other relief is prayed for. It was well pleaded that in May, 1907, plaintiff was the owner of a certain lot in the village of Glenville, and on that day entered into a written agreement whereby he agreed to convey the premises to defendant by warranty deed; that the defendant agreed to pay the sum of twelve hundred dollars for the property, five hundred dollars of which was to be paid at the time, and the balance upon delivery of the deed; that defendant thereupon gave his personal check for the sum of five hundred dollars, which was

afterward protested; that on October 14, 1907, plaintiff tendered a warranty deed of the premises and demanded of the defendant the sum of twelve hundred dollars as the purchase price, but payment was refused; that plaintiff always has been, and now is, willing to deliver the deed in question to the defendant upon the payment of the purchase price, but that defendant has at all times refused to pay the same.

1. A vendor of land is not entitled to recover the purchase price from his vendee in an ordinary action at law. He can recover only the damages he has sustained by reason of the breach of the contract obligation: 29 Am. & Eng. Ency. of Law, 2d ed., 719, citing Lathrop v. O'Brien, 44 Minn. 15, 46 N. W. 147, and other cases; 2 Warvelle on 66 Vendors, 2d ed., sec. 937; 2 Sutherland on Damages, 3d ed., sec. 569; Stewart v. McLaughlin's Estate, 126 Mich. 1, 85 N. W. 266, 87 N. W. 218; Goodwine v. Kelley, 33 Ind. App. 57, 70 N. E. 832. If the complaint be regarded as an action at law merely, the demurrer was properly sustained.

2. Counsel for plaintiff, however, insists that it sets forth a good cause of action for specific performance. That the relief sought was a money judgment is, of course, immaterial. It is elementary that a demurrer will not lie to a mere prayer for relief. The question is whether the facts stated entitle plaintiff to equitable relief. It is also true that here plaintiff has not alleged either the conclusion or the facts from which a conclusion could be drawn, that he had not an adequate remedy at law. This leads to the consideration of the real merits of the controversy.

Plaintiff's right to prevail depends upon the application to the facts his complaint set forth of the doctrine of mutuality of remedy. The vendee, essentially as a matter of course, is entitled to specific performance. The vendor should be allowed similar relief. It has been demonstrated that "the rule as to mutuality of remedy is obscure in principle and in extent artificial, and difficult to understand and to remember": 1 Harvard Law Review, 104. In 3 Columbia Law Review, 1, Dean Ames with characteristic penetration and cleverness has clarified the general subject. While there are authorities to the effect that the specific performance of a contract to sell land will not be enforced, in the absence of a showing for equitable interposition, the general rule, and the rule in this state, however, is that "where parties make a mutual executory contract for the sale of real estate, and the vendor covenants on his part to convey the land, and in consideration thereof the vendee promises to pay the purchase

price, and there is nothing in the contract which makes it invalid or objectionable in its nature, nor in the circumstances connected with it, equity regards the vendee as the beneficial owner of the premises, even though he has not paid the purchase price; and the vendor has the right to enforce payment of the purchase money by a suit in equity against the vendee's equitable estate in the land, instead of by an ordinary action at law to recover the debt. And the vendor may proceed to enforce specific performance by such suit, whereby the vendee's equitable 67 estate under the contract is sold in pursuance of a judicial decree which will operate as an assignment of the vendee's rights under the contract, and whereby it would not operate as a cancellation of the contract itself": Abbott v. Moldestad, 74 Minn. 293, 73 Am. St. Rep. 348, 77 N. W. 227. And see Hodges v. Kowing, 58 Conn. 12, 18 Atl. 979, 7 L. R A. 87; Pomeroy on Contracts, sec. 6; Waterman on Specific Performance, sec. 15. The reason is clear. The vendee is entitled to specific performance, essentially as a matter of course. The remedy should be mutual. In this view the complaint stated a case for specific performance and was not demurrable.

3. It is urged, however, that the summons to which the complaint was attached sought a money judgment, and not other relief. It is elementary that a demurrer lies only on the grounds specified by the statute. Revised Laws of 1905, section 4128, contains nothing which would allow defendant to avail himself of any inconsistency between the summons and the complaint. Moreover, the ground of this particular demurrer is that the facts stated in the complaint do not constitute a cause of action. It follows that defendant cannot avail himself of any discrepancy or irregularity on this point by demurrer.

Reversed.

START, C. J. I concur with some hesitation. It is evident that the complaint was drafted upon the mistaken theory that upon tendering the deed the plaintiff could recover the purchase price in the action at law. But the complaint alleges, not only a tender of the deed, but a continuing readiness to deliver it. With this allegation, the complaint, very liberally construed, states a case for equitable relief. Upon proof of the allegations of the complaint, so construing them, the court would be justified in ordering a sale of the premises, and a deficiency judgment, or that upon the delivery of the deed into court for the defendant the plaintiff have judgment

for twelve hundred dollars: See complaint in paper book of Abbott v. Moldestad, 74 Minn. 293, 73 Am. St. Rep. 348, 77 N. W. 227.

That the Vendor of Land may have Specific Performance against the vendee, see Andrews v. Sullivan, 2 Gilm. 327, 43 Am. Dec. 53; Old Colony R. R. Corp. v. Evans, 6 Gray, 25, 66 Am. Dec. 394; Brown v. Haff, 5 Paige Ch. 235, 28 Am. Dec. 425; Abbott v. Moldestad, 74 Minn. 293, 73 Am. St. Rep. 348; Steinman v. Hagan, 108 Va. 563, 128 Am. St. Rep. 978.

As to the Right of the Vendor of Land to Recover the Purchase Price from the vendee, see Waddell v. Latham, 71 Miss. 351, 42 Am. St. Rep. 467; Naftzger v. Gregg, 99 Cal. 83, 37 Am. St. Rep. 23; Washington v. Soria, 73 Miss. 665, 55 Am. St. Rep. 555; Union Stave Co. v. Smith, 116 Ala. 416, 67 Am. St. Rep. 140.

MESHBESHER v. CHANNELLENE OIL AND MANU

FACTURING COMPANY.

[107 Minn. 104, 119 N. W. 428.]

PURE FOOD LAW-Sale of Impure Oil-Injury to Consumer. The defendant sold to a retail grocer in the city of Minneapolis a quantity of oil, knowing that the same would be sold at retail to his customers for use in cooking their food. The plaintiff purchased of the grocer one quart of the oil for such purpose, which consisted of forty per cent of mineral oil and sixty per cent of cotton-seed oil. It was injurious to health. His food, which he ate, was cooked in the oil, and he was thereby made seriously ill. Action to recover damages for the injuries so sustained. Held:

1. That the findings of fact of the trial court are responsive to the issues made by the pleadings, are supported by the evidence, and sustain the conclusion of law that the defendant is liable to the plaintiff for such damages. (p. 443.)

2. Our pure food statute is intended to protect the health of all of the people of the state, and the plaintiff is within the class for whose benefit it is intended; and this case falls within the rule that, where a statute for the benefit or protection of individuals prohibits the doing of an act or imposes a duty, any person who violates the prohibition or neglects the duty is liable to those injured thereby for damages resulting proximately from such violation or neglect. (pp. 443, 444.)

3. The plaintiff's injuries resulted proximately from defendant's failure to comply with the statute, for it sold the oil to the grocer, knowing that it was to be sold by him to his customers for food purposes. Teal v. American Min. Co., 84 Minn. 320, followed. (p. 445.)

4. The fact that the defendant did not know that the oil was impure does not affect the question of its liability, for it was bound to know whether the article which it sold for food was wholesome and complied with the statute. (p. 445.)

(Syllabus by the court.)

Thomas C. Daggett, for the appellant.

George Harold Smith, for the respondent.

105 START, C. J. Appeal from the order of the municipal court of the city of Minneapolis denying the defendant's motion for judgment notwithstanding the findings of fact and conclusions of the trial court, or for a new trial.

The here material allegations of the complaint are to the effect following: The defendant is, and at all the times hereinafter mentioned was, engaged in the manufacture and sale to the public and retail dealers of sweet oil to be used as a food and for cooking purposes, and represented the same to be healthful and pure and adapted for use in cooking food. On or about February 9, 1908, plaintiff purchased from one Jacob Neiman, a retail grocer in the city of Minneapolis, one quart of sweet oil, so manufactured for sale by defendant and placed by it with Neiman for sale to the public, and used the same in cooking his food. The sweet oil so purchased by plaintiff was in fact impure and poisonous, and not adapted for cooking purposes, which facts were well known to defendant; but nevertheless defendant maliciously, carelessly, wantonly and with a reckless disregard to human life, manufactured and placed the impure and poisonous oil on the market for sale, and caused the same to be sold to the plaintiff as pure and healthful cooking oil. The plaintiff, relying on such representations of the defendant, so purchased the impure and poisonous sweet oil and used it in cooking his food, which he ate, and thereby he was poisoned and made dangerously ill, to his damage in the sum of five hundred dollars. The answer in effect was a general denial.

The issues were tried by the court without a jury, and findings of fact made in substance as follows:

In the city of Minneapolis during the month of February, 1908, defendant sold and delivered to one Jacob Neiman a quantity of oil, which was designed and intended to be used for mingling with human food in the process of cooking the same. Neiman was there engaged 106 in the retail grocery trade. The oil was sold by the defendant to Neiman with the knowledge that the same would, in the regular course of his business, be sold at retail to his customers for use in cooking their food. Neiman sold and delivered to plaintiff one quart of the oil for such purpose. The oil was used in cooking the plaintiff's food and in such use was mingled with it. The plaintiff partook of such food and of the oil mingled therewith. The oil at all times stated consisted of about