Nos. 16,627—(212) | Minn. | Jul 15, 1910
Lead Opinion
The complaint states that on October 13, 1902, appellant company executed and delivered to William T. Gulledge and Bichmond E. Gulledge a written contract, whereby they promised to sell and convey to them the merchantable timber standing upon certain lands in the state of Washington, purchased by appellant from the Northern Pacific Bailroad Company; that such contract was afterwards assigned to respondent, the Gulledge Brothers Lumber Company, a corporation; that ever since Eebruary 24, 1903, appellant has been wholly unable to convey a good title to the timber, for the reason that the same became incumbered by a writ of attachment in an action by certain parties against appellant company, then pending in the courts in the state of Washington, to recover $150,000, which terminated in a judgment against appellant, duly entered November 1, 1907, for $90,000, and that an execution was issued and levied against the lands, and the same were sold to satisfy the judgment; that by reason of the levy of attachment, and the execution and sale, appellant was unable to make good title to the timber, and was unable to deliver it, or to enable respondent to enter upon the lands and remove the same. The answer put in issue many of the allegations of the complaint, and among other things alleged that on April 14, 1909, appellant sold and conveyed the lands to the Columbia Biver Lumber Company, a corporation, which company commenced an action in 1909 against respondent in the superior court in the state of Washington, wherein respondent appeared generally; that the court had jurisdiction of the parties and of the subject-matter; and that the action resulted in the making of findings of fact and conclusions of law and the entering of a decree to the effect that respondent had no right, title, or interest in or to any of the lands. To this part of the answer respondent demurred, upon
1. We are satisfied that the demurrer to the answer was properly sustained. Assuming, for the present, that the attachment levied in 1903, ending in a judgment, and sale of the property, constituted a breach of the contract, which justified respondent in repudiating it and in looking to appellant for damages, appellant’s liability for that breach was not released or transferred by the conveyance of the lands in questiop to the Columbia River Lumber Company. The action brought by the Columbia Company against respondent, and all others interested in the lands, for the purpose of quieting title,'did not necessarily involve or dispose of the issues presented in the present action.
2. However, appellant argues that the complaint does not state facts sufficient to constitute a cause of action, for the reason that it does not appear that any breach of the contract ever occurred, and that it does appear that respondent was in default in making payments under the contract, and that a tender of performance is not pleaded, and consequently respondent has no standing to maintain this action. Further, it is argued that it conclusively appears from the complaint that this action was not commenced within six years from the date of the alleged breach by appellant.
In determining these several questions, we decline to follow appellant through the minute examination of the complaint and various exhibits attached. In testing the sufficiency of a pleading on demurrer, liberal construction is the rule. The contracts involved require the building of a mill by respondent and the cutting of a large amount of timber. The complaint states that the attachment levied in 1903 was for the sum of $150,000, and that it terminated in a judgment of $90,000 and a sale of the premises in 1907. Whatever may be the facts, it certainly does not conclusively appear from the complaint and the exhibits that the attachment, judgment, and sale of the land did not interfere with the performance of the contract by appellant. The first step was the filing of the attachment • but it was permitted to result in a judgment and sale in 1907. . If true that the title was incumbered and transferred by sale, respondent was not required
What we have just said sufficiently answers the objection that it appears from the face of the complaint that the present action was not brought within six years from the time of the breach of contract. Appellant’s breach was not necessarily complete on the filing of the attachment February 24, 1903. The complaint alleges that during December, 1903, respondent made a payment of twenty dollars on the contract, which would be within six years from the time of the commencement of this action. This was equivalent to an allegation that the money was received by appellant-as a recognition of the existence of the contract at that time, and implied that up to that time at least neither party considered that the other had repudiated it.
Affirmed.
Rehearing
On October 14, 1910, the following opinion was filed:
On the reargument appellant vigorously urged that from the facts stated in the complaint it appeared that respondent was estopped from maintaining this action for the reason that it entered into the contract, exhibit 4, more than six months subsequent to the time the attachment was levied, and made no claim that the attachment constituted a breach of its contract.
As stated in the original opinion the filing of the attachment was the first step, but did not terminate in a judgment and sale until 1907, and we are unable to agree with appellant that the breach consisted alone in the filing of the attachment, and that the execution of exhibit 4 was a complete waiver. But, conceding that the attach
The decision is adhered to.