106 N.W. 236 | N.D. | 1905
Plaintiff brought this action in district court to recover a sum of money which she claims to' be entitled to by reason of the alleged failure and refusal of defendants to perform a contract for the sale by them to her of a farm. The answer, besides putting in issue some of the facts constituting the plaintiff’s cause of action, pleaded a counterclaim for the specific performance of the contract, upon which the plaintiff based her cause of action, and the plaintiff replied. The action was tried by the court without a jury, and resulted in a judgment for plaintiff. Defendants have appealed from the judgment, and in addition to a demand for a new trial of all the issues, under section 5630, Rev. Codes 1899, numerous specifications of errors have been incorporated in the settled case, aimed at certain alleged errors of law at the trial, and also challenging the sufficienc}'' of the evidence to sustain the findings. The action was tried after the taking effect of chapter 201, p. 277, Laws 1903, amending section 5630, so. as toi exclude from its operation cases “properly triable with a jury.” The complaint states a cause of action at law for the recovery of money only, and hence, to the extent of the issues arising on the complaint and the defensive parts of the answer, the action was one properly triable with a jury. The issues arising on the counterclaim and reply, however, were equitable, and were properly triable by the
In this case the adjudication of the issues arising on the counterclaim and -reply necessarily determine all the disputed facts essential to plaintiff’s right to recover. As pointed -out in Arnett v. Smith, 11 N. D. 55, 88 N. W. 1037, which was a -case very similar to this, “the established procedure is that, when an -equitable defense is -presented, it is to be decided by the court as if it were an equitable proceeding before other issues are -determined, because the determination o-f the equitable issues in favor of the defendant would p-ut an end to the litigation and obviate the necessity -of trying the legal issues involved.” That statement of the rule is, perhaps, too broad. It is m-ore correct to- say that the equitable issues should be first heard and disposed of by the court, as in a s-uit in equity, when the answer presenting such a -defense is in the nature of a - ’bill in equity containing the essential av-erments -of such a pleading, and requiring the interposition of a -court of equity to afford the relief sought. Estrada v. Murphy, 19 Cal. 248, 272; Lombard v. Cowham, 34 Wis. 486; Du Pont v. Davis, 35 Wis. 631. This case comes fully within that rule. The issues on the counterclaim and reply were to be first tried and disposed of by the court in the same manner as if the counterclaim were the complaint in an action commenced by the defendant. The equity side of the case should proceed to a final decree. The contents of that -decree would determine whether all the issues on the law side of the case were foreclosed -or not. If the decree left any part of the legal issues still open to litigation, then such issues are for trial as in a law action. Martin v. Zellenbach, 38 Cal. 300, 99 Am. Dec. 365, and cases supra. In this case, as already stated, the determination of the equitable counterclaim left nothing further to litigate, and hence the decree was the final determination of all the issues in the action. In such a -case as this, the amount of plaintiff’s recovery would be an issue triable by a jury if the amount were in dispute ; but the pleadings admit the amount and date of the payment of the $500 which plaintiff recovered. Plaintiff concedes that the recovery o-f this sum was all she was entitled to. All questions arising on the law side of the -case were eliminated by the trial of the equity side, and hence it seems clear to us that this appeal
In passing, however, it may be well to call attention to the erroneous practice pursued in the trial of this case. When the case was called for trial, the plaintiff proceeded to introduce evidence in support of her cause of action, and the whole case was tried as if it were one triable under section 5630, both as to the cause of action in the complaint, and the counterclaim. In sucih a case as this, when the answer calls for a separate trial of the equitable issues, the trial should be confined to those issues alone, and the proceedings on the trial should 'be the same as if the defendant were plaintiff. Enc. Pl. & Pr. p. 811, and cases cited in note 2.
We come now to the merits of the case. As already indicated, the question to be decided on this appeal is whether or not the defendants have shown themselves entitled to' a decree for specific performance of the contract in suit. It is unnecessary to set forth the pleadings. It is sufficient to say that the defendants allege the making of the contract hereinafter described, and that they have performed or offered to perform, and are now ready, able and willing to perform the same. The plaintiff claims that the defendant failed to tender performance within the stipulated time, and that the contract had been rescinded before defendants tendered performance. The contract is as follows :
“Received of Bertha A. Cotton Five Hundred no-100 dollars ($500.00) as earnest money and'in part payment for the purchase of the following described property situated in the county of Emmons and State of North Dakota, viz: West half of section fifteen, east half of section ten, southeast quarter of section nine, all in township one hundred thirty-four, north of range seventy-six, west of 5th P. M. which I have this day through owners J. C. Butter-field and J. F. Demaris sold and agreed to convey to said'Bertha A. Cotton for the sum of six thousand and eight hundred no-100 dollars ($6,800.00) on terms as follows, viz.: Five hundred no-100 dollars ($500.00) in hand paid as above, and $3,300.00 January 1st, 1903, with 8 per cent interest from date; $3,000.00 on or before January 1st, 1908, as stated below, payable on or before the dates as named above, or as soon thereafter as a warranty deed conveying a good title to said land is tendered, time being considered of the essence of this contract. And the above three thousand no-100 dollars shall be secured as follows: $1,500.00 first mortgage on E. y2 of Sec. 10-134-76. $550.00 first mortgage on. N. W. y. of*471 Sec. 15-134-76. $550.00 first mortgage on S. W. % of Sec. 15-134-76. $400.00 first mortgage on S. E. % of Sec. 9-134-76. Interest at 8 per cent per annum from date. And it is agreed that if the title to the said premises is not good, and cannot ’be made good within thirty days from date hereof, this agreement shall be void, and the above title of above land shall rest upon abstract satisfactory to second party. Five hundred no-100 dollars ($500.00) refunded. But if the title to said premises is now [not?] good, in the names of J. C. Butterfield and John Demaris within thirty -days, and said purchaser refuses to accept the same, said five -hundred no-100 dollars ($500.00) shall be refunded to the said Bertha A. Cotton and contract null and void. But it is agreed and understood by all parties to this agreement, that said forfeiture shall in no way affect the right of either party to enforce the specific performance of this contract. Possession of above land to be given March 1st, 1903. Second party is to accept or reject abstracts within thirty days after delivery of abstracts to Emmons Co. State Bank, Braddock, N. Dale. J. C. Butterfield. [Seal.] John F. Demaris.
“I hereby agree to purchase the said property for the price and upon the terms above mentioned and also agree to- the conditions of forfeiture and all other conditions therein expressed. Bertha A. Cotton, by F. H. Cotton, Agent.”
The contract was not subscribed by the plaintiff personally, but her name was signed thereto by her -husband, F. H. Cotton, who acted for and represented the plaintiff in all negotiations concerning the contract, both before and after the making of the agreement. Although there was no- evidence of written authority from her to him to make the contract for her, yet the complaint itself is an express recognition of her husband’s agency to make the agreement. After the contract was signed it was, by consent of both parties-, left with H. W. Allen, the assistant cashier of the Emmons County State bank. In about two weeks thereafter, the abstract of title was furnished to plaintiff, and she submitted it to a firm of attorneys for their opinion. The attorneys gave a written opinion of the title. Neither the abstracts nor the opinion thereon are in evidence, and there is nothing to disclose the contents of the opinion, except that it pointed out defects in the defendants-’ record title to the land. There is- nothing in -the record-disclosing what the defects were, but it is conceded that at the time of the commencement of this action the defendants had fully perfected their -title. The attorneys’ opinion was, on October 29th,
It must be taken as a fact, therefore, that the plaintiff unconditionally elected to proceed with the execution of the contract, notwithstanding the defective title, instead of canceling or terminating the agreement and demanding the returh of the earnest money, as she had a right to do under that clause of the agreement which made it optional with her to do so within thirty days after the abstracts were furnished. The view just expressed renders it unnecessary to consider whether or not the conditions which the plaintiff claims were part of the terms upon which she agreed to proceed further with the agreement would have any different effect on the rights of the parties than an unconditional election to proceed with the proposed purchase notwithstanding the defective title. In consequence of the letter of October 29th, the contract between the parties stood as if the provisions for a termination thereof at the option of plaintiff had never been made, because those provisions had been acted upon, and their purpose fully accomplished. After that date, then, the agreement on the part of the plaintiff was to buy the land and pay the balance of the purchase price, on the following conditions: $3,300 and interest at 8 per cent
Under the contract in the -case at bar, -even if time were of the essence of the contract in that. respect, the defendants were not required to convey until January 1, 1903. Long after that date the plaintiff continued to treat the contract as still in force. In the latter part of January the defendants sent to Mr. Allen for delivery a deed for the land executed by them. The deed was what is termed a special warranty -deed, and plaintiff declined to accept it, because the warranties were not general and in the usual form. She did not put her rejection on the ground -that it came too late, and her acts on this occasion can only be construed as a demand
One point more remains to be noticed. There is no evidence as to whether the land in question is occupied or not. There is an allegation in the counterclaim, however, to the effect that after plaintiff’s refusal to perform the contract defendants' plowed and seeded to grain the cultivated' parts of the land, and that they did this in order to prevent a depreciation of its value, which would result if the cultivated land was permitted to remain uncultivated. There is a prayer for an accounting, and for compensation for the expense so incurred. No mention was made of this feature of the pleading in the court below so far as the record discloses, and it has not been referred to by either counsel in this court. Inasmuch, however, as the counterclaim discloses that some part of the land was used by the vendors after the time
The judgment appealed from is’reversed, and the cause remanded to the district court, and that court will enter a judgment