Agnew v. Nelson

THE COURT.

This action was instituted by the plaintiffs against the defendant Nelson to recover the sum of one thousand dollars. The plaintiffs’ cause of action rested upon a common count for moneys had and received. The defendant Nelson by his answer denied having received any money for the use and benefit of the plaintiffs; and pleaded as a

[40]

further defense the execution of a contract by himself, as the agent of the plaintiffs, with one B. Cassou for the purchase and sale of certain real estate for an agreed price, under the terms of which the defendant received from Cassou the sum of one thousand dollars as a deposit and as part payment on the purchase price of the property. The defendant’s answer further alleged that the contract of purchase and sale provided that if the plaintiffs ’ title to the property which was the subject-matter of the contract did not prove good the deposit and part payment of one thousand dollars was to be returned to Cassou; that the plaintiffs’ title to the property was found to be defective, and that therefore Cassou demanded of the said defendant the return of the one thousand dollars. Because of these facts the answer of the defendant Nelson averred that the rights of all of the parties to the transaction in suit could not be fully and rightfully determined without the presence of Cassou as a party to the action. Accordingly Cassou was made a party defendant.

The defendant Nelson counterclaimed against Cassou in the sum of one thousand dollars for services alleged to have been rendered the latter.

Cassou, answering the plaintiffs’ complaint and the cross-complaint of the defendant Nelson, averred that under the terms and conditions of the contract of purchase and sale he was entitled to a return of the one thousand dollars paid by him to the defendant Nelson because of certain defects in the plaintiffs’ title to the property, which defects, it was alleged, had been in writing specifically called to the attention of the plaintiffs. Incidentally Cassou counterclaimed against the defendant Nelson, but inasmuch as the issues raised as between these defendants by their respective pleadings are not involved upon this appeal they need not be narrated.

It will be noted that of the several objections alleged to have been originally made to the plaintiffs’ title to the property by Cassou only two were alleged in his answer to be in actual existence and not removed at the time of the commencement of the action. The trial court found that these two objections were not “good or valid, and that the said title to said property was good and merchantable.”