115 N.W. 663 | N.D. | 1908
This is an appeal from a judgment of the district court of Foster county in plaintiff’s favor. The principal errors assigned relate to the sufficiency of the complaint, which is as follows: “Plaintiff, for its amended complaint, herein complains and alleges: (1) The plaintiff is and during all of the times mentioned in this complaint has been a corporation duly organized and existing under the laws of this state.. (2) That on or about the 24th day of September, 1906, the plaintiff and the defendant entered into a written
To this complaint defendant demurred upon the ground that the •same fails to state facts sufficient to constitute a cause of action. Thereafter the following written stipulation was entered into be
The only assignments of error which are discussed in appellant’s, brief relate to the sufficiency of the complaint to state facts constituting a cause of action; hence the other assignments are deemed to have been abandoned under rule 14 of this court (91 N. W. vi’ii),, and will not be noticed. Does the complaint allege facts sufficient to constitute a cause of action? Its sufficiency is challenged by appellant’s -counsel for the reasons, as stated by them, that it fails to> allege: (1) That defendant had an interest or equity in the property sold. (2) That the defendant represented that he had an interest in said property, -title, or possession, or expectation, or possibility, or could secure title, and that plaintiff believed and relied' upon such representations. (3) It fails to allege fraud, deceit, or mistake on the part of defendant. (4) It fails to allege that defendant is not in position to c-onvey good title. (5) It does not allege a tender by plaintiff of the $2,500 cash to be paid on delivery of the deed. (6) It fails to allege the drawing and signing the notes and mortgages with the requirements of a sealed instrument, and’ the tender thereof to the -defendant. (7) It fails to allege -the date of offer to perform to show a reasonable time for defendant to per-
As to the next contention, all we desire to say is that, if defendant was not in a position to convey good title, it was his fault. Such fact was no part of plaintiff’s cause of action. Whether defendant was or was not in a position to live up to the contract he had solemnly entered into was immaterial. If he was not, he must suffer the consequences; if he was, but refused, he is in a like predicament.
The next reason given relates to the failure to allege a tender by plaintiff of the $2,500 cash payment and the notes and mortgages
Another reason assigned why the complaint fails to state a cause ■of action is that it does not disclose that defendant had had a reasonable time between the making of the contract and the commencement of the,action in which to perfect title and furnish deed. The contract was made on September 24th, and the action was not commenced until about October 29th, and surely this was a reasonable time. Furthermore, if defendant desired to rely upon any such ground for refusal, he .should have pleaded the same. By the demurrer he admits an unqualified refusal to convey. ¡No claim is made that the title was not perfect, or that defendant could not at any time have conveyed a good title.
The next contention is that the complaint fails to allege a specific date for the payment of the $2,500' and the delivery of the deed. There is nothing in this contention. The complaint alleges that this sum was to be paid on delivery o'f deed. No time having been agreed upon for the doing of the acts, the law fixed a reasonable time. The complaint was clearly sufficient in this respect. What we have here said applies equally to the next two grounds urged.
The last reason given why the demurrer should have been sustained is wholly without merit. The complaint alleges that plaintiff offered to perform the conditions of the contract on its part by paying the $2,500 and executing the notes and mortgages for the deferred payments, “as provided in said contract.” This was amply sufficient.
This disposes of the assignments of error which are in any way discussed by appellant in his brief. We find no error in the record, and the judgment appealed from is accordingly affirmed.