169 P. 737 | Nev. | 1918
Lead Opinion
By the Court,
This was an action for unlawful detainer. It appears that on the 14th day of March, 1914, a lease was entered into between the appellant and respondent here, pursuant to which instrument appellant took possession of the premises, a part of which is involved in this controversy. The lease on the premises contained, among other things, the following provisions:
“That the said party of the first part, for and in consideration of the amount herein mentioned and the terms and conditions hereinafter stated, hereby leases and lets to the said party of the second part all of her home ranch, the same consisting of about sixty acres of land and lying south of Reno, in Washoe County, Nevada, on-the Virginia road to the Corcoran ditch, and extending on the south from the Haynes ranch northerly to what is known as the South Side drain ditch. This lease is to be in force and effect and to extend for one year from the date hereof, or to and including the 14th day of March, 1915.
“It is understood and agreed that this lease is extended for another four years or from the 14th day of March, 1915) to and including the 14th day of 'March, 1919, on the south ten acres, more or less, which said south ten acres extends from the Haynes ranch north to the irrigating ditch used by Menke. The said party of the second part is to pay for the use of the said land herein leased for the first year, or until the 14th day of March, 1915, the price and sum of $375 in cash. Said*291 $375 is to be paid as follows: $100 on or before April 10, 1914, and $275 on or before the 1st day of November, 1914.
“It is understood and agreed by and between the parties hereto that the said second party is to pay for the use of the south ten acres for the term of four years and extending from March 14, 1915, until March 14, 1919, the price and sum of $150 per year. Said sum and amount is to be paid $75 on or before the 10th day of April, and $75 on or before the 1st day of November, of each and every year during the life of said lease.
“It is understood and agreed by and between the parties hereto that said first party hereby gives and grants to the second party an option or right to purchase all or any part of the land herein leased which lies south of the fence on the south side of the orchard running due west from the Virginia road to the Corcoran ditch, and extending southerly to the Haynes ranch and containing twenty acres more or less. This option or right to purchase is for the term of five years from date hereof, or to and including the 14th day of March, 1919.
“It is further understood that, if the said party of ■the second part does at any time during the life of this option elect to exercise his right of option and to purchase the said property or any part thereof, he may do so by paying therefor the price and sum of $300 per acre cash, or such as he elects to purchase during the life of the option.”
On October 29, 1914, pursuant to the terms of the lease, appellant visited the home of respondent and there paid the amount specified in the lease as the last payment, to wit, $275. On that date a receipt was given, and this instrument, as admitted in evidence, reads as follows:-
“October 29, 1914.
“Received of Charles J. Anderson, two hundred and seventy-five dollars, in full for rent on He Remer ranch for one year to the first of April, 1915.
“275.00 Mary De Remer.”
Appellant here contends that the action was prematurely commenced in the court below, inasmuch as it was instituted prior to the 1st day of April, 1915. In this respect appellant contends that the time within which appellant should have possession of the premises pursuant to the terms of the lease was extended by the mutual agreement of the parties, and that this is evidenced by the receipt of October 29, 1914, containing the words “to the first of April, 1915.” The record as it is before us as to all matters of fact presents sharp conflicts in the evidence. Respondent here, in testifying in the trial court, denied the existence of the receipt of October 29 in the form in which it was presented; that is, containing the words “to the first of April, 1915.” She admitted having signed the receipt, but contended that at the time of the placing of her signature to the instrument it terminated with the words “one year.”
The evidence in this case bearing upon the question of the inconvenience to appellant, affected by his failure to secure possession of the premises between the 14th day of March, 1914, and the 1st day of April of that year, is, to say the least, unsatisfactory. It was testified by the respondent and by the witness Brewington that appellant had immediate possession of the premises on and after the 14th day of March, 1914. In fact, appellant himself testifies to his having put a man to work on the premises, and nothing is presented by the record which would indicate that the respondent did anything the nature of which would be to deprive appellant from taking possession. It is claimed that during the interim between the 14th day of March and the 1st day of April, 1914, certain horses were pastured on the premises, and that the respondent had collected the pasturage for the same. . If this be true it constitutes a separate matter, involving a right and a remedy of which appellant could have availed himself. Everything being considered, we
The case of Rampke v. Beuhler, 208 Ill. 384, 67 N. E. 796, affords an illustration of an application of the rule which we deem applicable here. There the agreement between the parties reads :
“Claus Eggers and Ester Eggers herein agree to deed to William Beuhler, of Harvey, Cook County, Illinois, four lots, 25 feet by 150 feet deep, in either section 8 or 9, town 36 north, range 14 east of the third principal meridian, in Cook County, Illinois, for his assistance in case of Mohr et al. v. Eggers et al., to be on the road north side of said land.”
The court, in reviewing the question- of law applicable to the admissibility of parol evidence for the purpose of establishing the tract of land, said:
“A description of land may be sufficient if a surveyor can locate it with or without the aid of extrinsic evidence, and where a sufficient description is given, parol evidence may be resorted to to locate the premises, but where there is no description, and the uncertainty is patent, parol proof cannot be permitted to show what was intended.”
Continuing, the court says:
“In this case the lots agreed to be conveyed could not be ascertained or identified, and, as a matter of fact, had no existence. * * * In specific performance of a contract the province of the court is to enforce the contract which the parties have made, and not to make a contract for them and then enforce it.”
In the case of Reed v. Lowe, 8 Utah, 39, 29 Pac. 740, the agreement pursuant to which specific performance was sought to be enforced read thus:
“Also do I sell to N. K. Ardahl a part of my lot on the*296 bench, size 6x10 rods deep, to be taken either way from my house, for the sum of $75 per rod, or, if it is taken 6x20 rods, for the sum of $100 per rod; in either case on the following agreement,” etc.
The court, in passing upon the matter, held, in conformity with the general rule, that a description is regarded as sufficiently definite and certain when it contains a reference from which it can be made certain. The description there was held to contain no reference from which definiteness could be established. The contract was held void for uncertainty. That case is an expression of the rule that parol evidence is not admissible to supply that which is lacking in the contract by reason of which the indefiniteness resulted.
In the case of Knight v. Alexander, 42 Or. 521, 71 Pac. 657, the description in the agreement was 100 acres of land off the west end of a certain tract of land lying along Lake Labish. There the court, while reviewing many cases applicable to the question here, said:
“Courts do not permit parol evidence to be given to describe the property intended to be included in the contract, and then apply such description to the terms thereof.”
To the same effect are the cases of Omaha Loan & Trust Co. v. Goodman, 62 Neb. 197, 86 N. W. 1082, and Nippolt v. Kammon, 39 Minn. 372, 40 N. W. 266, and Wiegert v. Franck, 56 Mich. 200, 22 N. W. 303.
Following the rule of the admissibility of parol evidence under such circumstances as laid down by courts and chancellors in so many instances, the trial court in this instance ruled correctly in excluding evidence bearing upon the selection of a 5.21-acre tract contended by appellant to be excluded from the effect of this suit.
As we have already intimated, had the appellant exercised the option to purchase the entire tract involved in this controversy, and in so exercising had complied with the terms of the lease, a different question would be involved. The term “any part,” used in the lease, having no fixity as to amount, position, boundary, or form, was
We are referred by appellant to the case of Schroeder v. Gemeinder, 10 Nev. 355. There Mr. Justice Hawley, speaking for this court, referred approvingly to the decision of the Supreme Court of California in the case of De Rutte v. Muldrow, 16 Cal. 513, wherein that court had before it a controversy in which was involved an instrument of lease containing the provision:
“That the said Muldrow shall have the privilege of purchasing any part of said land during the continuation of this lease, at its value in preference to any other persons.”
It will be observed that neither the Schroeder case nor the De Rutte-Muldrow case is of assistance to us in determining the question here involved. Indeed, it may be said that neither of these cases holds contrary to the view we have heretofore expressed in conformity with the authorities cited. In neither of these cases does the court attempt to discuss the validity of the contract from the standpoint of uncertainty as to the premises described. In the Schroeder case the premises were specifically and definitely fixed by the description, while in the Muldrow case the controversy turned on the right of the lessee to purchase any part of the premises when such part had been designated and offered for sale to third parties. The case rather turned on the right of one to make such contract. The question of definiteness of the premises involved was not before the court, as we read the decision.
The uncertainty existing with reference to the option sought to be established by the lease here in question exists not only with reference to the description and amount of the land to be selected, but equally so with reference to the manner of selection or as to who was to make such selection. Appellant contends that by this language the meaning conveyed was that he alone had the right to make the selection as to the part which he would elect to purchase. But the language used fails
Our attention has also been directed to the case of Fleishman v. Woods, 185 Cal. 256, 67 Pac. 276, wherein the Supreme Court of California dealt with the question here presented, and we deem that case worthy of comment, only for the purposes, however, of differentiation. In that case Fleishman brought his action to quiet title to a certain ten-acre tract of land. At a subsequent date the defendant, Woods, filed a cross-complaint praying for the specific performance of a certain contract relating thereto. This contract, made the basis of the cross-complaint, was entered into between the plaintiff, Fleishman, and a third party, and provided that upon the third party’s performing certain conditions he should, at the end of three years, become entitled to a conveyance “of 4½ acres of the west half of said 10 acres, to he selected by the plaintiff.” The court, in dealing with the specific question, said:
“There is no uncertainty as to the manner in which the selection is required to be' made, nor do we see any lack of power in a court of equity to compel the selection to be made.”
It will be noted that by the cross-complaint in that case the defendant sought to compel the plaintiff to do that which by his contract he had agreed to do, namely, to select the number of acres designated. In the matter at bar the party to make the selection is unnamed and unindicated. Where the terms and conditions of the contract between the parties here at all analogous to those referred to by the court of California in the Fleishman-Woods case, we would have no hesitancy in concurring
“The description in the contract must be sufficient to bind interested parties, and cannot be made to depend for its very existence upon the subsequent action of one of them.”
Our attention has been directed to the case of Repetto v. Baylor, 61 N. J. Eq. 501, 48 Atl. 774. The case was there brought before the chancellor on motion to dismiss under rule. On such motion it was held that the facts alleged in the bill of complaint were to be taken as true. In the light of this rule the court held that specific performance would be required; but the contract as set forth, together with the allegations of the bill in equity, established an agreement between the parties whereby the vendor was to convey 138 lots, “the same to be chosen and designated by the said R., and said lots to remain as now marked upon map made by Morris Hill-man,” etc.; further, that at the time of making the contract the vendee, by the vendor’s direction, marked on the map designated the 138 lots referred to in the contract. In that case the contract entered by the parties, together with the map setting forth the marked selections, became a part of the bill in equity, and the court said:
“In the contract and map exhibited in the amended bill it appears that certain ascertained lots were originally selected by both parties, and that there was an agreement of both that, in case any of them had b.een previously sold, one party should choose an equal number from those indicated in the same blocks to take their places. Here was an exact designation of a number of lots, and an agreement whereby, in case any selected could not be conveyed for want of title, one party only*300 should choose enough other lots from the defined limits to fill the number. The minds of the parties had come to a final agreement upon the subject-matter of the sale; the vendor agreeing, in a named contingency, that the vendee should select what a part of it should be. Nothing remained to be done between them as negotiating contractors. It was always in the power of either to enforce the contract — the vendor, by requiring payment of the price; the vendee, by selecting the number of lots necessary to supply the deficiency and requiring conveyance.”
The rule, as asserted by some commentators and courts, that a contract giving one of the parties the right of selection of the lot or lots to be conveyed is not incapable of specific performance, would be applicable here, if the conditions of the contract or the facts presented were in keeping with the rule. In the matter at bar the absence of designation in the contract as to who was to make the selection constitutes an element which removes this case from the rule referred to.
We would close the question with the assertion of a rule which, directly applicable and eminently just under the requirement of the statute of frauds, will serve to recapitulate our views as heretofore set forth: The description of real property in an option contract must be so set forth in the writing that it can be identified from the instrument itself. Parol evidence is admissible for no other purpose than to show the application of the description, as given in the instrument, to the particular property intended to be conveyed by and described therein. Exclusion of all other property from the effect of the agreement is primarily the purpose of admitting such evidence at all. Not for the purpose of furnishing or supplying a description is parol evidence admissible, but only to identfy that which the agreement describes. (Barnes v. Rea, 219 Pa. 287, 68 Atl. 839; Heyward v. Bradley, 179 Fed. 325, 102 C. C. A. 509; Wadick v. Mace, 191 N. Y. 1, 83 N. E. 571; Bauer v. Lumaghi Co., 209 Ill. 316, 70 N. E. 634; Broadway
It is our conclusion here that that portion of the lease which attempted to confer an option or right to purchase “any part” of the leased premises herein involved, being void for indefiniteness, was therefore not enforceable; and evidence offered for the purpose of establishing selection by the appellant of a fractional tract included within the whole of the premises leased and less than all of such premises, as well as evidence going to establish tender of money as payment for the same, was properly excluded by the trial court.
The trial court found that the monthly value of the rental and profits of the premises involved and held over by appellant was the sum of $62.49. The court found, among other things, that while the appellant was in possession of the premises, and holding the same over, he caused large portions of the land, bearing valuable crops, to be frequently inundated and flooded with water, and had damaged the premises by allowing large quantities of water to remain standing on the land, thereby impairing its productive qualities. The court assessed the damages, including the rental value of the land, at $702.08. There is a substantial conflict appearing in the record as to the element of rental value of the premises and as to the damage accruing thereto by the acts of appellant.
“The right of trial by jury shall be secured to all and remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law. * * * ” . .
Section 5226, Revised Laws, being section 284 of our civil practice act, provides:
“Trial by jury may be waived by the several parties to an issue of fact in actions arising on contract, or for the recovery of specific real or personal property, with or without damages, and with the assent of the court, in other actions, in the manner following:
“1. By failing to demand the same at or before the time the cause is set for trial or to appear at the trial.
“2. By written consent, in person or by attorney, filed with the clerk.
“3. By oral consent in open court, entered in the minutes.”
Were this other than a case for the recovery of specific real property with damages for wrongful retention, we might, in view of the language of the statute, regard the question differently. The waiver entered into by counsel for the appellant through his attorney in the first instance was such as is contemplated by subdivision 3 of section 5226, Revised Laws; that is, “oral consent in open court entered in the minutes.” Trial by jury having been waived in the first instance by counsel for appellant, it was within the discretion of the trial court to thereafter, upon motion or request, disregard or set aside the waiver theretofore entered and try the case by jury. Hence what we are called upon to determine here is rather as to whether the trial court abused its
The judgment and order appealed from are affirmed.
It is so ordered.
Dissenting Opinion
dissenting:
I dissent.
The agreement entered into between the parties described in detail the entire tract of land leased' to appellant, and gave him an option or right to purchase “all or any part of the land herein leased which lies south of the fence, * * * containing twenty acres, more or less.” It is a general rule that contracts capable of being made certain will be specifically enforced.. (26 Ency. Law, 2d ed. p. 38.) Since the twenty-acre tract is sufficiently described, two questions arise: First, did the agreement confer upon the lessee the right to select ? Secondly, was the 5.21 acres selected by the lessee capable of being made certain? The twenty-acre tract being clearly described, there can be no doubt in my mind but that the 5.21 acres selected by the lessee was capable of being made certain, and was made certain by the acts of the lessee. I think this view is sustained by the authorities. (Fleishman v. Woods, 135 Cal. 256, 67 Pac. 276; 36 Cyc. 595, note 4; 26 Ency. Law, 2d ed. 36.) I am also of the opinion that no other construction can be put upon the language used except that the lessee should have the right to select. If he be given the option to purchase “any part” of the twenty-acre tract, it is evident to my mind that the parties must have contemplated that the mental process of selection should be exercised by the lessee.
“The contract here pleaded is one which in and of itself gives no clue.to the property involved, and the complaint states no facts which would clarify the obscure references therein contained.”
It was in view of this situation that the court said:
“The description in the contract must be sufficient to bind interested parties, and cannot be made to depend for its very existence upon the subsequent action of one of them.”
The court evidently intended to lay down a rule applicable to the facts of that particular case. I am of of the opinion that the language of Lord Halsbury, which we quoted in Jensen v. Pradere, 39 Nev. 466, 159 Pac. 55, is of striking application in construing the language last quoted. The quotation alluded to reads:
“Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. A case is only an authority of what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it.”
If the court (in Eaton v. Wilkins) had not used the language referred to in this sense, I am of the opinion that it would have expressly overruled the case of Fleishman v. Woods, supra. If the Eaton case is to be construed as contended in the prevailing opinion, then should A give B a lease for one year upon two adjoining town lots, both of which are described by the number designated in the recorded plat of the town, and also by metes and bounds, and in the agreement of lease an option is given B to purchase the entire tract leased, or
I cannot give my assent to any such rule.
Rehearing
On Petition for Rehearing
Rehearing denied.