¶1By the Court
¶2This action was instituted originally before a Justice of the Peace, and is an action for money had and received. The object of the action is to recover the sum of $70, alleged to have been paid by the plaintiff to the defendants on a contract for the sale of certain lands described in the complaint. Judgment was rendered by the justice in favor of the plaintiff, and an appeal was taken by the defendants on questions of law to the district court, where the judgment of the justice was affirmed ; from the judgment of the district court the defendants appeal to this court. The case turns upon the sufficiency of the complaint.
¶3The complaint alleges, that on or about December, 1861, the parties entered into a verbal agreement, by the terms of which the defendants, in consideration of three hundred dollars to be paid by the plaintiff as hereinafter stated, agreed to convey to the plaintiff by a good and sufficient warranty deed certain real estate described in the complaint; that as and for the first payment of the purchase money, the plaintiff agreed to deliver to said defendants one yoke or pair oí oxen, *332at and for the agreed price and sum of seventy dollars, and the remainder of said purchase money was to be paid at such time as “ the plaintiff should see fit to do so that the plaintiff about the time aforesaid, in pursuance of said contract, and as a part payment of the purchase money of the premises, delivered said yoke or pair of oxen to the defendants, and thereupon the defendants delivered to him the possession of .the premises, and the plaintiff went into possession thereof, and put valuable improvements thereon to the value of one hundred and fifty dollars ; that afterwards, about May, 1861, the defendants, while the plaintiff was absent from his home in the service of the IJ. S., as a soldier, and without his knowledge or consent, and against his wishes, and before the expiration of the time for the payment of the balance of the purchase money, sold and conveyed the said premises to some person to the plaintiff unknown; that after his discharge from said service, and after learning of the conveyance of the premises, the plaintiff demanded of the defendants a return of the said first payment on the purchase price of the premises, which was refused, and that although often requested the defendants have not returned or paid the same, &c.
¶4Although the contract set up in the complaint is a verbal one, and void by the statute of frauds, uve think the part payment of the purchase money, the entry into possession by the plaintiff under the contract, and the erection of valuable improvements thereon as averred in the complaint, are sufficient to show a partial execution, and to take the same out of the statute; but whether the contract is within the statute or not is unimportant, .since the object of this action is not to enforce the specific performance of the contract, but to recover money paid under it.
¶5It is well settled that money paid on an agreement void by the statute of frauds, which the defendant cannot or will not *333complete, may be recovered back. Chitty on Contracts, 622 n. 3, and authorities cited. And generally an action will lie to recover back money paid by one party, in contemplation, of some act to be done by the other, which is the sole consideration of the payment, and the thing stipulated to be done is not performed. Ii.
¶6The money, having been paid under this contract, whether void by the statute or not, therefore, may be recovered back if the defendants, without the fault of the plaintiff, refuse, or arc unable to perform the contract. The complaint distinctly avers that the defendants have conveyed the premises to another person. This allegation for the purposes of this case must be taken as true. The defendants have, therefore, placed it out of their power to perform their contract with the plaintiff. Under such circumstances the plaintiff is not required to • tender the balance of the purchase money, or make a demand of them for a conveyance, before this action will lie; Richards vs. Allen, 17 Maine, 296; for the law does not require a useless act.
¶7But it is urged that the failure of the plaintiff to pay the balance of the purchase money was a breach of the contract on his- part, and therefore he cannot recover. Even if this were an action to enforce this contract, the position thus taken would not be correct. The time of payment in this instance is manifestly not of the essence of this contract, and before the defendants could set up any rights against the plaintiff for the failure to pay, it would be incumbent on them in the first instance to tender a deed and demand the purchase money. But it is further urged that assuming all the facts stated in the complaint to be true, the plaintiff before he can recover, must offer to surrender up possession of the premises and all liis rights under the contract. An answer to this objection is, that although it may not distinctly appear from *334the complaint that the plaintiff has surrendered the possession to the defendants, yet in their answer the defendants substantially aver that the plaintiff did so surrender the premises to them, thus supplying the defect, if any existed, in the complaint. Gould's Pl., Ch. 3, sec. 192; 1 Ch. Pl., 671.
¶8It is further urged by the defendants, that in any event the plaintiff could only recover the specific article paid or exchanged, or its value, and the value of the oxen is not alleged, nor is it alleged that they are of any value. We are cited in support of this position to Dayton et al. vs. Warren, 10 Minn., 236. The case is not in point.
¶9The deed in. that case contains the following recital: “ It being expressly understood between the parties hereto that the consideration expressed above, to wit: $8000 is the estimated value of certain lots in Lyman Dayton’s addition to St. Paul, in exchange for which lots the above described premises … are hereby conveyed as aforesaid.” The consideration of the deed from Warren to Dayton in that case, was an exchange of real property ; the property received by Warren was estimated at the value of $8000, and that was the consideration expressed in the deed. It was held in that case that it was immaterial what was the estimated value of the property received by Warren, so long as the parties had not covenanted to abide by that estimate, that the actual value was the measure of damages. In this case the value of the cattle was agreed upon by the parties at $70, and they were taken by the defendants and delivered by the plaintiff as payment of that amount.
¶10The presumption prima facie at least, from this is, that the oxen were of the value agreed upon by the parties. The plaintiff' was therefore entitled to recover this amount upon the breach of the contract by the defendants. A further point made by the defendants is, that there is a total absence *335of all evidence as to several of the most material allegations of the complaint. We are not referred to any particular allegations as to which apy such defect of evidence exists, and presume the point- is not insisted on as it does not appear to have been taken before the justice, nor in the district court.
¶11The appeal being taken on questions of law only, no question of law can be tried or raised in the district court, except-those tried or raised in the court below, and to which an exception was taken to the order made thereon by the justice, except objections to the jurisdiction of the court, and that tho complaint or answer does not state facts sufficient to constitute a cause of action or defense. General Stat. p. 435, sec. 107.
¶12Tho judgment of the district court is affirmed.