Lead Opinion
By the Court,
This was an action brought to recover damages for the breach of an alleged agreement to insure a dwelling-house and its contents against loss by fire for plaintiff’s protection, while the defendants were in the possession and occupancy of the property as purchasers from plaintiff under and by virtue of an executory contract of sale. The case was tried before the court without a jury, and judgment was rendered in favor of the plaintiff and against the defendants in the sum of $1,250. The defendants appeal from said judgment, and also from an order denying and overruling their motion made for a new trial.
In June, 1919, plaintiff agreed to sell, and the defendants agreed to buy from plaintiff, three lots or parcels of land, together with the dwelling and improvements thereon, situate in the town of Carlin, Nevada, for the agreed price of $1,500, payable $100 in cash, and the balance in monthly payments of $50 each, until the full purchase price was paid. The cash payment was made at the time, and three of the monthly payments were made in accordance with the terms of the agreement, leaving a balance to be paid of $1,250. It is alleged in the complaint that at the time of the agreement, and in consideration thereof, and in consideration of the plaintiff letting the defendants into the possession of the property, the defendants agreed to insure the dwelling-house and'its contents for at least the sum of $1,400, to insure plaintiff against any loss or damage in the event the said premises should be destroyed by fire before plaintiff should be paid in full for the property agreed to be sold. It is alleged that defendants, in violation of their said agreement to insure the property, and in violation of plaintiff’s right and interest in the property, wilfully and fraudulently insured the property in their own names; that in September, 1919, the dwelling-house and its contents, agreed to be insured by defendants, was totally destroyed by fire. The other recitals in the complaint are made by way of aggravation, and need not be stated. The complaint concludes with the averment that, by reason of the defendants' wilful and fraudulent refusal, failure, and neglect to comply with their agreement to insure the property for plaintiff’s protection, plaintiff was damaged in the sum of $1,250, and prayed j udgment for that amount.
The material facts developed on the trial of the case are as follows:
The agreement set out in the complaint was not in writing, but it appears to have been the understanding of the parties that it would be subsequently reduced to writing by an attorney for the defendants, and formally executed, and that thereafter the defendants caused to
Defendants assign two principal reasons for the reversal of the judgment, one that there was no contract proven, as alleged in the complaint, and that the agreement to sell the lots and improvements thereon was within the statute of frauds (section 1069 of the Revised Laws of Nevada), and that the engagement to insure the property was likewise within the statute, in that the agreement was not in writing and not to be performed within one year from its date, and therefore void under the provisions contained in section 1075 of the Revised Laws of Nevada. Counsel for plaintiff insist that the agreement was without the statute, by reason of the defendants’ part performance thereof. Section 1073, Revised Laws.
Whether a contract is entire, or separable into distinct and independent contracts, is a question of the intention of the parties, to be ascertained from the language employed and the subject-matter of the contract. Hutchens v. Sutherland, 22 Nev. 363, 40 Pac. 409; State v. Jones, 21 Nev. 510, 34 Pac. 450. Whether, then, a contract is divisible, is a question of law, dependent upon the terms of the contract; but what are the terms thereof is a question of fact. If the several stipulations in the transaction are so interdependent that the parties cannot reasonably be considered to have contracted but with a view to the performance of the whole, or that a distinct engagement as to any one stipulation cannot be fairly and reasonably extracted from the transaction, no recovery can be had upon it, however clear of the statute of frauds it may be, or whatever be the form of action employed. The engagement in such case is said to be entire and indivisible. Browne on Statute of Frauds, sec. 140. But the question is: Does the agreement under consideration come within this principle? It is the general rule that the statute of frauds relating to contracts for the sale of land does not include collateral or independent undertakings outside of such contracts. 25 R. C. L. 555.
Unless, then, there is something in the terms of the contract to bring it within any exception to the principle, we should say that ordinarily an agreement to insure property, made at the same time, and which formed a
“The provision prohibiting any action to be brought on an oral contract within the statute includes actions based indirectly on the contract. An action for damages for its breach is in effect one for its enforcement and cannot be maintained; and this is, as a general rule, held true though there has been such a part performance by the plaintiff as would authorize a court of equity to decree specific performance by the other party.” 25 R. C. L. sec. 332, p. 691.
It is well settled that, when a contract is invalid or for any reason unenforceable, it necessarily follows that no right of action exists for damages occasioned by the breach thereof. Kiser v. Richardson, 91 Kan. 812, 139 Pac. 373, Ann. Cas. 1915d, 539. From the very nature of the case made by the complaint and of the relief required, plaintiff was obliged to set up in his complaint the entire contract. In such case he is debarred from recovering, because it appears upon the proofs that the executory part of the contract is within the
What we have said disposes of the contention that section 1073, Revised Laws of 1912, makes the defendants liable. This section applies to equitable actions only for specific performance, and not to actions at law for a breach of a void contract. The agreement in question being impressed with the statute of frauds, and not divisible, the plaintiff can claim nothing from its breach.
We therefore can do no less than reverse the judgment.
It is so ordered.
Rehearing
On Petition for Rehearing
By the Court,
We should deny the petition without comment but for the fact that the court is charged with having decided the case upon a point not raised in the briefs or in any bill of exceptions or assignment of errors. In support of the proposition, it is, in substance, asserted that the court either overlooked or disregarded the provision contained in section 4 of an act entitled “An act to regulate proceedings on motions for new trials and on appeal in civil cases” (Stats. 1923, p. 163), which section provides that:'
“The supreme court shall not decide any case on any point not raised in the opening brief or briefs in answer thereto without first giving all parties affected an opportunity to be heard upon such point.”
It is useless to say that the court was conversant with the statute when the opinion was written, but did not understand that it was intended thereby to convert this tribunal into a law school.
In this case it was decided that the verbal contract for the sale of the realty and the purchasers’ agreement to insure the house thereon against loss by fire was within the statute of frauds, because the latter was not separable from the contract for the purchase of the land. It is true the point decided was not so stated in the briefs, but we submit that it was necessarily
It is further objected that the statute of frauds was not raised by the pleadings or upon the trial of the case. Clearly this objection comes too late upon a petition for rehearing.
The petition is denied.