(dissenting):
I do not concur in the reversal of this judgment, as I think the oral agreement sued on was without consideration and not enforcible, not being in writing and signed by the defendant. The sum of money alleged to have been paid to the defendant was not paid under this oral contract but under the prior written contract which was not complied with. There is no evidence that the plaintiff would have been in a position to have purchased the property at the foreclosure sale or that it sustained any damage by reason of its failure to attend that sale, and a mere oral agreement by the defendant that it would purchase the property at the foreclosure sale and subsequently convey it to the plaintiff was not enforcible.
I, therefore, think no cause of action was alleged and that the dismissal of the complaint should be affirmed.
Judgment reversed, new trial ordered, costs to appellant to abide event.