Lathrop v. O'Brien

57 Minn. 175 | Minn. | 1894

Mitchell, J.

By the contract of the parties (Exhibit B) defendant agreed to give a specified sum for “good title” to the lands therein described, and the plaintiff agreed “to produce deeds for the same from the owners.” Both parties understood that plaintiff was not the owner of the lands, but that the conveyances were to come from a third party.

It is undisputed that the title tendered to defendant by plaintiff was “good,” unless it was for the fact that the original patents for the land (which were tendered with the deeds from the owner) had not been recorded in the counties where the lands were situated, and that no money was tendered to pay the expense of recording them; and it was solely on this ground that the trial court held that the tender was insufficient, and that defendant was justified in refusing to accept the deeds. It is undisputed that defendant expressly placed his refusal exclusively on the ground that the deeds did not include and convey a certain forty-acre tract not described in the contract, but which he claims should have been included. In his answer, also, he justifies his refusal to accept the deeds solely on this ground, — a claim which he failed to establish by evidence.

It is also undisputed that at the time the deeds were tendered the objection that the patents had not been recorded, and no money tendered to pay for recording them, was neither made nor suggested.

Conceding, for the sate of argument, that the tender was insufficient for the reasons stated, yet the defendant, having placed his refusal solely on a certain other specified objection, is precluded from now raising another objection, trifling in its character, and which, if made at the time, could have been easily remedied by the plaintiff. It does not appear how much it would have cost to record the patents, — six or seven in number, — but it could only have amounted to a few dollars at most. It appears that the amount of money demanded by plaintiff was $3.50 less than the sum named in the contract. The evidence is silent as to why this deduction was made, but it is not a very violent assumption that it was designed to meet the cost of recording patents; and, if so, the defendant did not object to the sufficiency of the amount. But, however this may be, upon the facts proved and found defendant must be held to have waived the objections to the tender which he now urges.

The judgment is reversed, and the cause remanded, with directions to the court below to render judgment in favor of the plaintiff for the sum of $496.50, with interest from the commencement of the action.

Buck, J., absent, sick, took no part.

(Opinion published 58 N. W. 987.)