Lynch v. Bechtel, 19 Mont. 548

Lynch v. Bechtel

19 Mont. 548 | Mont. | 1897

Buck, J.

The objection raised by defendant’s demurrer that the complaint is ambiguous and uncertain cannot avail him on this appeal. By answering after his demurrer was overruled, he waived it.

Does the complaint state a cause of action?

We think it does. However defectively, it nevertheless states a cause of action. Defendant filed his answer, and the case was tried on issues raised. In the answer, the defendant assumed that allegations were in the complaint which it should properly have contained, but did not; in other words, the answer supplied the omission in the complaint. See Hamilton v. Railway Co., 17 Mont. 334, 42 Pac. 860, and 43 Pac. 713.

Did the court err in instructing the jury that the failure on the part of plaintiff to complete the entire building by September 1, 1893, was no defense to the action?

Some evidence was offered in behalf of defendant to show that by reason of the noise that would result in connection with the completion of the lower part of the building after September 1, 1893, guests or lodgers who might be occupying rooms in the *552upper stories would be disturbed, and that the building material piled on the sidewalk in front of the building would be a sc urce of discomfort. But this was merely cumulative evidence to establish incidentally the main defense relied upon, and was not offered for the purpose of proving any counter damages. The record shows that prior to September 1, 1893, plaintiff had offered defendant several hundred dollars for an extension of time within which he should be allowed to finish the building, according to defendant, or the two upper stories, according to plaintiff. Defendant did not accept this offer. Manifestly, defendant knew at the time of this offer that the entire building could not be finished on September 1st. The explanation defendant gives for his refusal to accept this offer was that it was plaintiff’s duty, and not his, to comply with the terms of the contract as to the completion of the building on or before September 1st. As a result of defendant’s not accepting this offer, plaintiff, at an extra expense of several hundred dollars, finished the second and third stories of the building on or prior to September 1st. It clearly appears from the evidence that the only ground for defendant’s refusal to take possession of the premises on September 1, 1893, was his belief that he had a right to repudiate the entire five years’ lease if plaintiff did not have the entire building completed on September 1st. Can such a literal construction be given to this agreement under the established facts of this case ? Some two months after September 1st, the entire building was completed. From the situation of the parties at the time of the lease, the purpose for which it was entered into, and all the incidental facts before it explanatory of the entire transaction, we think the lower court committed no error in instructing the jury that the failure to complete the entire building on September 1, 1893, was no defense to plantiff’s action.

There was no mixed question of lawr and fact. It was one of law alone, under the facts and the pleadings. Time was not expressly- made the essence of the contract by its terms. .The defendant did not expressly plead, and did not attempt *553to show by evidence, that it was ever intended that the date September 1, 1893, was of the essence of the contract. The general rule of law, as stated by Mr. Clark in his work on Contracts (Hornbook Ed.), in the latter part of section 251, is as follows:

“In contracts for the sale of land, or for the performance of services, or the construction of buildings, time will be held of the essence if, from the nature of the property and the circumstances, it seems that the parties must have so intended, but generally, in such contracts, time is not of the essence. ’ ’

The question whether or not time was the essence of this contract, under the facts of this case, was for the court to determine, and not the jury. But the use of the word “building” in the habendum clause of the lease, was rather by way of description than otherwise. When the two upper stories were finished and ready for occupancy, the contract was substantially performed.

We are of the opinion that the lower court committed no error in this respect. If defendant had been damaged by plaintiff’s delay in completing the entire building, he could have pleaded wherein he was damaged. But he did not do so.

From the pleadings and from the . evidence, it clearly appears that defendant relied absolutely upon his right to reject and repudiate the contract, simply because the entire building had not been completed on September 1, 3893. This, as we have shown, he had no right to do.

The order denying the motion for a new trial and the judgment are both affirmed.

Affirmed.

Pemberton, C. J., and Hunt, J., concur.