206 P. 1087 | Mont. | 1922
prepared the opinion for the court.
Appellant brought this action in the district court to recover the sum of $2,000 and interest alleged to be due upon a certain contract for the sale of real estate, made February 20, 1917, between Walter Alexander, as party of the first part (plaintiff in the district court, appellant herein), and Solomon Wingett, party of the second part (defendant in the district court, respondent herein), by which plaintiff agreed to sell and convey to defendant and defendant agreed to purchase from plaintiff the said real estate therein described, for a consideration of $4,500, payable $1,000 on the first day of
The complaint alleges that on February 20, 1917, a warranty deed, conveying said land in accordance with said contract, and an abstract of title showing title in the plaintiff, were deposited in the First National Bank of Denton, Montana, where they now are, and ever since have been so deposited; that on the twentieth day of February, 1917, the defendant entered into possession of said real estate, and continued such possession for a long period of time thereafter; that some time thereafter, not definitely known to plaintiff, defendant Wingett delivered possession to the defendant Cobum Murray, who has occupied and used it since such possession was delivered to him; that defendant Wingett attempted to assign his rights in said contract to defendant Murray; that no payments have been made, and that the amount due upon said contract is the sum of $2,000 and interest. The complaint was filed November 13, 1920.
Thereafter a joint demurrer was filed by defendants, alleging the complaint did not state facts sufficient to constitute a cause of action, which was overruled, and a joint answer thereupon served and filed by the defendants. The cause came on for trial, and was dismissed by the plaintiff upon his own motion as to the defendant Coburn Murray. The contract with the assignment thereon to Coburn Murray was offered in evidence by the plaintiff. Thereupon defendant Wingett objected to the introduction of any evidence upon the following grounds: First, that the said contract was an agreement for the sale of lands- without any restrictions, and therefore assignable under our law, and that he (Wingett) had a legal right to assign all his right, title and interest in and to the contract, and when -such assignment was made he was relieved and eliminated from the transaction; second, that the contract provides no remedy on the part of the vendor except that of forfeiture; that there is no provision
The question to be determined upon this appeal is whether the court was justified in rendering judgment for said defendant Wingett, and the determination of this question involves the question whether the complaint states facts sufficient to constitute a cause of action.
The assertion of defendant Wingett that by assigning his interest in the contract to Coburn Murray he thereby terminated his liability under the contract is not tenable, for he is personally liable upon the contract to plaintiff, and cannot relieve himself of his liability thereon, or escape the obligation imposed thereby, without the agreement of plaintiff to that effect. He became personally responsible upon the contract when it was made, for the consideration therein; that is, the purchase price of the real estate, and he cannot substitute the personal responsibility of another person in lieu of his own, unless the other party agrees to such substitution. (Midland County Sav. Bank v. T. C. Prouty Co., 158 Mich. 656, 133 Am. St. Rep. 401, 123 N. W. 549; Foley v. Dwyer, 122 Mich 587, 81 N. W. 569; Jones v. Owens, 149 Ga. 72, 99 S. E. 121; Gross v. Thornson, 286 Ill. 185, 121 N. E. 600; 27 R. C. L. 563; Montgomery v. De Picot, 153 Cal. 509, 126 Am. St. Rep. 84, 96 Pac. 305; 39 Cyc. 1646.)
In the case of Arkansas Valley Smelting Co. v. Belden Min. Co., 127 U. S. 379, 32 L. Ed. 246, 8 Sup. Ct. Rep. 1308, the court said: “But everyone has a right to select and determine with whom he will contract, and cannot have another person thrust upon him without his consent. In the familiar phrase of Lord Denman, ‘You have the right to the benefit you anticipate from the character, credit and substance of the party with whom you contract.’ ” Apparently this is conceded to be the law, as the point is not argued
However, it is earnestly contended that under the terms of the contract itself the vendor has only the right of action for damages for breach of the contract, or an action to recover possession of the real estate under the forfeiture clause, and he rests his contention solely upon the case of Wing v. Brasher, 59 Mont. 10, 194 Pac. 1106. In that case the action was brought to recover the amount claimed to be due upon a contract of sale or real estate. The contract itself specified the remedies of the vendor, and provided that it “cannot be construed to be a mortgage upon the above-described premises, in any sense, and that should said party of the second part default in any payments that may become due and payable under this contract, this contract shall be the only course of settlement thereunder.” The contract in the case at bar contains no such provision. Under the provisions of the contract in the case of Wing v. Brasher, supra, the vendor was bound to proceed in accordance with one of the remedies set forth in the contract, for he stipulated in the contract that the contract itself should be “the only course of settlement thereunder,” and thus, by a specific provision of his contract, he was prohibited from bringing his action to recover the purchase price, as that remedy was not mentioned in the contract. However, in the case at bar, there is no clause in the contract asserting, directly or by way of inference, that the remedies of the vendor, as set forth in the contract, are exclusive; and there is no clause therein providing that the contract shall be the only course of settlement thereunder. It is clear, therefore, that the decision in the case of Wing v. Brasher, supra, cannot be relied upon in support of the judgment appealed from, because the contract in litigation in that ease is wholly different from the one herein.
We quote with approval the rule relating to forfeitures as set forth in 27 R. C. L. 465, as follows: “The purchaser’s equitable estate or interest may be subject to be defeated under provisions therefor in the contract if he fails to comply therewith, but this right to terminate the contract is a right conferred on the vendor, and is to be exercised at his option; the purchaser has no right to take advantage of his own default and claim that his liability was thereby terminated. And this is true as a general rule though the contract provides that on the default of the purchaser the contract shall be deemed noneffective or void, as it is the general rule that provisions for forfeiture in contracts are made for the
In 39 Cyc., at page 1343, another statement of the law is made: “Ordinarily it is held that provisions of this character are for the benefit of the vendor alone, who may insist upon them or not at his option, and that consequently a default in payment by the purchaser will not terminate the contract so as to preclude an action by the vendor for the purchase money. ’ ’
In the case of Canfield v. Westcott, 5 Cow. (N. Y.) 270, the court says that the forfeiture clause is for the benefit of the vendor, and that should the vendee default the vendor might, therefore, consider the agreement void at his own election, or affirm it and bring action upon the covenants. The forfeiture clause in that case was as follows: “ * * * The said Daniel [the defendant] hereby agrees, that should he fail in performing any part of the above covenants, that this contract shall become void, and of no effect; and that the said party of the second part [the testator] shall and may re-enter, and take possession of the said premises, without hindrance and ’molestation.” This case was decided in 1826, and has been generally followed since. The forfeiture clause, it will be noted, is similar to the one in the case at bar. In 1833, the same principle was followed in Maine in Manning v. Brown, 1 Fairf. (10 Me.) 49, and has been upheld in the following cases: Wilcoxson v. Stitt, 65 Cal. 596, 52 Am. Rep. 310, 4 Pac. 629; North Stockton Town Lot Co. v. Fischer, 138 Cal. 100, 70 Pac. 1082, 71 Pac. 438; Fouts v. Foudray, 31 Okl. 221, Ann. Cas. 1913E, 301, 38 L. R. A. (n. s.) 255, 120 Pac. 960; Chambers v. Anderson, 51 Kan. 385, 32 Pac. 1098; Westervelt v. Huiskamp, 101 Iowa, 196, 70 N. W. 125; Lane v. Manning, 8 Yerg. (Tenn.) 435, 29 Am. Dec. 125; Korman v. Trainer, 258 Pa. 362, 101 Atl. 1051; Cape May Real Estate Co. v. Henderson, 231 Pa. 82, 79 Atl. 983.
In the ease of North Stockton Town Lot Co. v. Fischer, supra, the court says: “The forfeiture clause was for the
We are of the opinion that the forfeiture clause in the contract of sale was for the benefit of the vendor; and that the failure of the vendee to make the payments when due did not render the contract void so as to preclude an action for the purchase price of the real estate or so much thereof as was due when this action was commenced.
The objection to the introduction of evidence should have been overruled. We therefore recommend that the judgment appealed from be reversed and the cause remanded for further proceedings.
Per Curiam : For the reasons given in the foregoing opinion, the judgment appealed from is reversed and the cause remanded to the district court for further proceedings.
Reversed and remanded.