(specially concurring).
I concur in the result but not with all that is said in the foregoing opinion.
*480The cases of Cook-Reynolds Co. v. Chipman, Clifton v. Willson, Fratt v. Daniels-Jones Co., and Suburban Homes Co. v. North, all cited in the majority opinion in support of the statement that one who makes a down payment under an oral or parol agreement on the purchase price of real property cannot recover it back unless facts and circumstances are shown which appeal to equity and good conscience, are all cases having to do with written contracts, and in snch eases the rule declared is proper. In other words, the rule is proper where there exists a provable contract. None of them have to do with an oral agreement such as we have here.
The case of Perkins v. Allnut, 47 Mont. 13, 130 Pac. 1, supports the statement made in the majority opinion, but I do not agree with that case. The effect of that case is to permit defendant to rely upon the oral agreement to defeat plaintiff’s recovery of the so-called down payment without giving plaintiff the corresponding right to enforce the so-called oral contract against defendant. Such an arrangement lacks mutuality of obligation and remedy. Compare Brown v. Pollard, 89 Va. 696, 17 S. E. 6. The rule declared and applied in the Allnut case permits defendant to defeat the purpose of the Statute of Frauds. To say that defendant by setting up the oral agreement is not thereby seeking to enforce it is a play upon words. To the extent of claiming the right to retain the $1,000 defendant is seeking to enforce the oral agreement. The oral agreement becomes the foundation for his claim. He relies upon a defense which he cannot prove, i. e., that there was a sale of real estate and a down payment on such a sale. The Statute of Frauds prevents the proving of such an agreement except by a writing.
Our statute not only says that an oral agreement for the sale of real estate is invalid, It. C. M. 1947, sees. 13-606, 74-203 and 93-1401-7, but it is expressly provided that ‘ ‘ evidence, therefore, of the agreement cannot be received without the writing or secondary evidence of'its contents”. R. C. M. 1947, sec. 93-1401-7. “Therefore the contract cannot be relied upon or furnish evi*481clence for any purpose.” Dreidlein v. Manger, 69 Mont. 155, 220 Pac. 1107, 1109.
It should be noted that plaintiff did not take possession of the land and no contention is made and no proof was offered that there was such part performance of the so-called sale as to dispense with the necessity of a writing.
I realize that there are many cases in other jurisdictions that follow the general rule announced in Perkins v. Allnut. They are cited in the note in 169 A. L. R. 188, but in most of those cases the vendee conceded that he was the vendee of land under an oral contract. Here the plaintiff denies that he was such. The only way in which defendant attempts to prove it is by oral testimony which the statute says may not be received in evidence. Likewise in many of those case the statutory provisions were different from those in this state.
There are too, many cases taking a contrary view. They are cited in the note on page 192 of 169 A. L. R. One of the leading cases, among others refusing to follow the rule in Perkins v. Allnut, is that of Reedy v. Ebsen, 60 S. D. 1, 242 N. W. 592, Id., 61 S. D. 54, 245 N. W. 908.
I think plaintiff is entitled to recover because there was no consideration for the $1,000 which respondent obtained from him. Eccles v. Kendrick, 80 Mont. 120, 259 Pac. 609; Durkin v. Machesky, 177 Wis. 595, 188 N. W. 97; Reedy v. Ebsen, supra.