
67 S.E.2d 464 (1951)
234 N.C. 443
ROCHLIN
v.
P. S. WEST CONST. CO., Inc.
No. 380.
Supreme Court of North Carolina.
November 7, 1951.
*465 Land, Sowers & Avery and W. I. Ward, Jr., Statesville, for plaintiff, appellant.
Scott & Collier, Statesville, and M. L. Nash, Tryon, for defendant, appellee.
DENNY, Justice.
In our opinion there was error in the ruling of the trial judge. And where a judge intimates an opinion on the law which lies at the foundation of the action, adverse to the plaintiff, or excludes evidence offered by the plaintiff which is material and necessary to make out his case, he may submit to a nonsuit and appeal. Nowell v. Basnight, 185 N.C. 142, 116 S.E. 87; Chandler v. Mills, 172 N.C. 366, 90 S.E. 299; Hayes v. Atlanta & C. Air Line R. R., 140 N.C. 131, 52 S.E. 416; Hickory v. Southern R. R., 138 N.C. 311, 50 S.E. 683; Tiddy v. Harris, 101 N.C. 589, 8 S.E. 227; Mobley v. Watts, 98 N.C. 284, 3 S.E. 677.
This is not an action for specific performance, but one for the recovery of money paid to the defendant, as part of the purchase price of real property, pursuant to the terms of a parol agreement which the plaintiff alleges the defendant breached.
In the case of Carter v. Carter, 182 N.C. 186, 108 S.E. 765, 766, 17 A.L.R. 945, the Court said: "We have solemnly adjudged in this court, more than once, that where there is a parol contract to convey land, the full amount of the purchase money is paid, the vendee enters into possession, and the vendor afterwards repudiates the contract by refusing to make a deed for the land, the purchaser may recover the price of the land so paid by him (Durham Consolidated Land & Improvement Co. v. Guthrie, 116 N.C. 381, 21 S.E. 952 [953]), and further that where the vendor elects so to repudiate his parol contract by refusing to convey and sets up the statute of frauds, the purchaser may recover the amount paid by him for the land under his prayer for general relief, although the action be for specific performance."
In Durham Consolidated Land & Improvement Co. v. Guthrie, cited above, it is said: "If A. and B. contract for the sale of land by parol, and the vendor elects to repudiate the contract, the vendee may recover back the amount he has paid under the contract. * * * A parol contract for land is not void, except at the instance of the party who is allowed to and does plead the statute, and neither party who repudiates the contract can take any advantage or benefit under it." Wilkie v. Womble, 90 N.C. 254; Barnes v. Brown, 71 N.C. 507; Albea v. Griffin, 22 N.C. 9.
In the last cited case the Court held that the payment of the purchase price, the taking of possession of the premises, and making improvements thereon would not entitle the vendee to specific performance of the parol agreement; and further held that "no action will lie in law or equity for damages because of non performance". Even so, the Court said: "We are nevertheless of the opinion that the plaintiff has an equity which entitles him to relief, and that parol evidence is admissible for the purpose of showing that equity."
Therefore, we hold that while the plaintiff is not entitled to establish his parol agreement with the defendant for the purpose of obtaining specific performance thereunder, G.S. § 22-2, since the agreement as alleged is denied, McCall v. Textile *466 Industrial Institute, 189 N.C. 775, 128 S.E. 349; Arps v. Davenport, 183 N.C. 72, 110 S.E. 580; Henry v. Hilliard, 155 N.C. 372, 71 S.E. 439, 49 L.R.A.,N.S., 1; Miller v. Monazite Company, 152 N.C. 608, 68 S.E. 1; he may do so for the purpose of determining whether he is entitled to recover the amount he has paid the defendant under such agreement. And it is clearly evident this can only be done by oral testimony. Luton v. Badham, 127 N.C. 96, 37 S.E. 143, 53 L.R.A. 337; Pass v. Brooks, 125 N.C. 129, 34 S.E. 228; Tucker v. Markland, 101 N.C. 422, 8 S.E. 169; Pitt v. Moore, 99 N.C. 85, 5 S.E. 389; Wilkie v. Womble, supra; Kivett v. McKeithan, 90 N.C. 106. Cf. Grantham v. Grantham, 205 N.C. 363, 171 S.E. 331; Grant v. Brown, 212 N.C. 39, 192 S.E. 870. If, on the other hand, it is determined that the plaintiff has breached the parol agreement as alleged by the defendant, he will not be entitled to recover the amount paid thereunder. Improvement Co. v. Guthrie, supra. There is error in the ruling of the court below.
Error.
