194 N.W. 1021 | S.D. | 1923
Plaintiff and defendant John B. Johnson entered into a contract whereby said defendant agreed to sell and1 convey to plaintiff a tract of land in Clark county. The defendants John B. and1 Amanda Johnson were husband and wife, and used and occupied the said premises as a homestead. The purchase price fixed by the contract was $25,000. Plaintiff alleges in his complaint that, relying on said contract, he entered into a contract for the sale of the land to a third party, who was ready, able, and willing to buiy and pay for said1 land for $29,000; that plaintiff offered to comply with all the conditions in his contract with defendant John B. Johnson; that said defendant refused to convey the land as agreed in said contract, thereby preventing plaintiff froim! performing his contract to sell the land to his damage in the sum of $4,000. To this complaint defendants jointly demurred on the ground that said! complaint does not state facts sufficient to constitute a cause of action. The demurrer was sustained and plaintiff appeals.
The order sustaining the demurrer does not indicate the ground! on which the demurrer was sustained, and defendant has filed no brief in this court; therefore we do not know wherein the trial court found the complaint insufficient except as appears from' the argument in plaintiff’s brief, and from this wte infer that the trial court held! that plaintiff was not entitled to recover because the defendant Amanda Johnson had! not signed the contract. Had the suit been brought for specific performance, this would1 have been a sufficient ground of demurrer; so, also, would it have been a ground of a separate d'emhrrer by Amanda Johnson; but the demurrer was joint, arid!, if the complaint stated a cause of action
Defendant John B. Johnson covenanted to convey the title to the land to plaintiff. Under his agreement it was incun> bent upon him. to furnish a conveyance from, his wife, as well as from himself. If for any reason he was unable to furnish such conveyance, then he became liable to plaintiff for such damages as he suffered by reason of su'ch failure, and the demurrer should have been overruled.
The order appealed from1 is reversed.
Note. — Reported in 194 N. W. 1021. See, Headnote (1), American Key-Numbered Digest, Pleading, Key-No. 198, 31 Cyc. 332; (2) Vendor and Purchaser, Key-No. 151, 39 Cyc. 1555.
