211 P. 346 | Mont. | 1922
delivered the opinion of the court.
An examination of the record discloses that this is a companion case to that of Kramer v. Schmidt, 62 Mont. 568, 206 Pac. 620. Both arise out of the same transactions. In this case the plaintiff in his complaint predicates his right of recovery on two causes of action, viz.: First, on a contract alleged, whereby the plaintiff assigned and transferred to the defendant a certain option contract for the sale of lands belonging to one John Bain, comprising 3,600 acres, at the price of $20 per acre, the defendant agreeing that if the plaintiff should, within twelve months from the date of the assignment, find a purchaser of the lands ready, able and willing to purchase the same at $25 per acre, the defendant would accept such price, cause the lands to be conveyed to such purchaser, and share equally with the plaintiff the net profit on the sale so made; that the plaintiff within the time limited did find a purchaser ready, able and willing to buy the land for the sum of $25 per acre, but that the defendant refused to sell the lands to the prospective purchaser at such price, and in consequence the plaintiff claims as damages commission from the defendant of one-half the .profits which would have accrued on a sale of the land, amounting, to $9,000.
The second cause of action is an attempt to plead a quantum meruit for the value of the option contract assigned to the defendant.
A general demurrer was interposed to both causes of action, which was by the court overruled as to the first cause of action, and sustained as to the second cause of action. In his answer the defendant denies the agreement alleged by the plaintiff and affirmatively pleads the statute of frauds in bar. The cause was tried to the court without a jury, and at the conclusion of plaintiff’s case the defendant moved “for a nonsuit”; the court reserving its ruling thereon. At the con
As we view the ease from the record, there are but three questions necessary to be considered, viz.: (1) Did the court err in sustaining the demurrer to plaintiff’s second cause of action; (2) does the^evidence sufficiently establish the contract upon which plaintiff predicates his first cause of action, and breach thereof by the defendant; and (3) does the contract come within the statute of frauds?
1. If the complaint or a cause of action pleaded therein states a cause of action on any theory, it will be sustained. (Merk v. Bowery Min. Co., 31 Mont. 298, 78 Pac. 519; Donovan v. McDevitt, 36 Mont. 61, 92 Pac. 49; Raymond v. Blancgrass, 36 Mont. 449, 15 L. R. A. (n. s.) 976, 93 Pac. 648; Cassidy v. Slemons & Booth, 41 Mont. 426, 109 Pac. 976; Stadler v. City of Helena, 46 Mont. 128, 127 Pac. 454; Hicks v. Rupp, 49 Mont. 40, 140 Pac. 97; Decker v. Decker, 56 Mont. 338, 185 Pac. 168; Wing v. Brasher, 59 Mont. 10, 194 Pac. 1106; Kirkup v. Anaconda Amusement Co., 59 Mont. 469, 17 A. L. R. 441, 197 Pac. 1005.)
But in this instance the second cause of action attempted to be pleaded falls short of stating a cause of action in essential particulars, and in our opinion the court was correct in sustaining the demurrer thereto. It is alleged merely that the “plaintiff sold, assigned, and set over to the said defendant his said option contract, * * * that in pursuance and by virtue of the said option contract the said defendant thereupon and thereafter purchased the said tract of land from the said Julius Bain, and paid him therefor the sum of $72,000, the price expressed in the said option contract, and “that the reasonable price to be paid to this plaintiff for the assignment of the said option contract * * * was the sum of
2. We have carefully examined and reviewed all of the evi dence, and therefrom conclude that the district court was right in ordering judgment in favor of the defendant. The proof falls short of showing a breach of contract. The agreement is satisfactorily shown, but the evidence does not sufficiently establish that the plaintiff did in fact secure a purchaser of the land ready, able and willing to buy the same at the agreed price of $25 per acre. On this phase of the case, plaintiff’s cause of action must stand or fall upon the testimony of John J. Willis, he being the alleged purchaser of the lands procured by the plaintiff in fulfillment of his part of the agreement. His testimony is very unsatisfactory and contradictory, and, were we to base our decision on isolated statements in his testimony, decision could be reached either in favor of or against the plaintiff, on the question as to whether he in fact procured a purchaser ready, able and willing to buy the land.
Mr. Willis testified: “Q. Did you have any conversation with Mr. Awbery, perhaps in the month of May, 1917, about buying the Julius Bain ranch? A. Yes, sir. Q. And what was that conversation between you and him? A. Well, we started over there to look at it once; I wanted to go and see it, and he priced it at $25 an acre, and I was going to interest my father and uncle in it, if it was what he represented it, and the car broke down about two or three miles from Geyser, and
“By the Court: Do you remember them? A. Yes, sir; that is, to a certain extent.
“By the Court: You may go ahead. A. Well, if I found a good buy, any lands—in any lands—to let them know, that they were willing to invest. Q. They were willing to? And was it your intention to buy this land at that price of $25 an acre? A. I considered it a good buy according to what Mr. Awbery said. Q. Well, was it your intention to buy it? A. Yes, sir.”
On cross-examination he said: “Q. And it was your purpose, of course, before you put any money into that, to see what you were buying, as a cautious land buyer ? A. I did, yes; but the car broke down. I don’t know how -it would have been after that. I agreed to sign up for it for $25 after that. Q. You told Mr. Awbery, just as he stated here, that you would like to take an option on it for a few days? A. Yes,
On redirect examination, he testified: “Q. Mr. Willis, if it turned out that the title to 160 acres was defective, and that you would not have had to pay for that, and could have paid $25 for the rest of the ranch, would that have made any difference to you? A. What was the question? Q. If it turned out that there was a defective part, a defect in a small portion of it, 160 acres, for example, and you would not have had to take that, would you have been willing to pay $25 for the rest of it? A. I don’t think that would stop the deal at all. Q. You were willing to buy on Awbery’s representation, were you not? A. Well, I have bought a lot of it on his representation. Q. Well, were you at that time? A. Yes, sir.”
And on recross-examination: “ Q. Well, at the present moment you do not recall whether or not you were willing to buy it or not, until you had seen it? A. Well, I couldn’t say for sure whether I was going to buy it without seeing it or not; but I made one trip over there, and we broke down, and I was disgusted, and I wanted an option on it. I was willing to pay $25 an acre for it on his say-so.”
Viewing this testimony in the light most favorable to the plaintiff, and as establishing every material fact which it tends to prove, as we must (Cummings v. Helena & Livingston Smelting & Reduction Co., 26 Mont. 434, 68 Pac. 852; Stewart v. Stone & Webster Engineering Corp., 44 Mont. 160, 119 Pac. 568; Lackman v. Simpson, 46 Mont. 518, 129 Pac. 325), it cannot he said that the plaintiff produced a buyer for the lands ready, able and willing to purchase the same unconditionally.
3. The statute of frauds has no application in this case, as the agreement alleged was one to be performed within
65 Mont.—18
In the case last cited, Mr. Chief Justice Brantly, speaking for this court, after quoting the definition of an option contract for the purchase of real estate from the case of Ide v. Leiser, supra, well said with respect to the very same transaction here involved: “Under this definition the holder of the option is not vested with any interest in the land, but, as said by Mr. Justice DeWitt, he gets ‘in praesenti, not lands, or an agreement that he shall have lands, but he does get something of value, that is, the right to call for and receive lands as he elects. ’ The .doctrine announced in this case has been approved by this court in later cases. (Snider v. Yarbrough, 43 Mont. 203, 115 Pac. 411; Winslow v. Dundom, 46 Mont. 71, 125 Pac. 136; Tyler v. Tyler, 50 Mont. 65, 144 Pac. 1090.) The holder of the option, then, acquires nothing but a personal privilege to purchase, which does not ripen into an interest in the land until he chooses to exercise the privilege conferred by the option, and complies with the terms upon which he obtained it. So it is held by the authorities generally, from a number of which, found in the brief of counsel, we cite the following: James on Option Contracts, sec. 502; Richardson v. Hardwick, 106 U. S. 252, 27 L. Ed. 145, 1 Sup. Ct. Rep. 213 [see, also, Rose’s U. S. Notes]; Benedict v. Pincus, 191 N. Y. 377, 84 N. E. 284; Thacher v. Weston, 197 Mass. 143, 83 N. E. 360; Patterson v. Farmington St. Ry. Co., 76 Conn. 628, 57 Atl. 853; Verstine
The judgment and order are affirmed.
Affirmed.