125 Minn. 447 | Minn. | 1914
On November 21, 1908, plaintiff contracted to transfer a certain hardware stock to defendant subject to a claim of $1,050.80, wbicb was to be first paid out of tbe proceeds of any sales therefrom; and he also agreed to pay defendant $975 on or before Pebruary 1, 1909. In consideration thereof defendant agreed to convey to plaintiff 160 acres of land in Lyon county on or before November 1, 1909, free from all encumbrances except $3,000. In respect to the $975 payment tbe contract stated': “This money is to be used to clear tbe title to tbe above described real estate, and prompt payment of this amount of money on tbe above named date is tbe vital and essential
The assignments of error challenge certain findings of fact embraced in this general finding “that all the allegations of the answer of defendant herein and the amendments to said answer are true.” The substance of these findings is: (1) That the $1,500 note was made payable upon the express condition that plaintiff should pay $975 before February 1, 1909; (2) that plaintiff in the prior action claimed to exercise his right to elect to enforce the $1,500 instead of accepting the deed to the land, and if he had such right he did exercise it; (3) that the former action is a bar to this; (4) and that the failure to pay the $975 forfeited plaintiff’s rights in the contract. It is clear that these so-called findings of fact are rather conclusions of law. Are these conclusions justified ? The only basis for the finding designated No. 1 is derived from the note and contract, and so with No. 4. Therefore the correctness of these findings depend upon the construction of the contract, for neither proposition was found in the former action. No. 2 begs the question. If he had no election, his ineffectual claim ought not to conclude him. As to No. 3 we think the findings in the former action demonstrate that there was no adjudication of this cause of action.
The nature of the contract virtually determines the appeal. Defendant holds it to be a mere option, and plaintiff insists it is a contract for the sale of real estate. If it be the former, the result reached is right, regardless of the incorrectness of the findings; on the other hand, if the agreement is an executory contract for the sale of real estate, the parties could not stipulate for a forfeiture. The statute, section 8081, G. S. 1913, prohibits a termination of such contract except by the service of notice on the vendee as therein provided. “Such notice must be given notwithstanding any provisions in the contract to the contrary.” It is the only mode of eliminating the rights of a vendee. Sylvester v. Holasek, 83 Minn. 362, 86 N. W. 336; Lamprey v. St. Paul & Chicago Ry. Co. 89 Minn.
As to defendant’s contention that plaintiff elected in the former action not to buy the land, it is sufficient to say that the court in such action did not find that plaintiff had the right of election, nor do we think the contract may be so construed as to give him such right, at least, not until he had performed.
The former action upon the note is not a bar. The note there sued on was a mere incident and part of the contract involved in this suit. It is entirely clear that, when the former action was brought, plaintiff did have no cause of action, either upon the note or upon the contract as a whole, because he had not tendered performance*. That being the case, the judgment therein cannot bar a cause of action which accrued thereafter through plaintiff’s subsequent tender. Could there have been any pretence of a bar by former adjudication if the tender had been accepted ?
The claim that this action is premature has no merit. Because the contract does not call for a conveyance until nine months after February 1, 1909, the time set for the payment of the $975, therefore it is contended that ho action could accrue until the lapse of a like period of time after tender. No such defense is pleaded, and furthermore it is found that the refusal to convey was unconditional. The whole defense rejects the proposition that plaintiff would ever become entitled to either deed or damages.
The judgment is reversed and the action remanded with direction to amend the findings of fact and conclusions of law so that judgment may be entered in favor of plaintiff for the difference between the amount tendered and $1,500 and interest since the tender.