103 Minn. 498 | Minn. | 1908
(after stating the facts as above).
The defendant contends that complaint does not state a cause of action for three reasons: “(1) The writing sought to be enforced is not a complete contract, is unenforceable, and binds no one. (2) The contract cannot be enforced because as to respondent it is indefinite and uncertain, and cannot be made certain by anything referred to in it
In the first place, the mere fact that defendant had title to an undivided one-half of the north half, instead of title to the north half, does not entirely prevent specific performance. It is elementary that land contracts in particular are specifically enforced, inter alia, because “one who has contracted to purchase a particular tract of land' cannot get its exact counterpart anywhere. * * * It is a unique
In the second place the mere fact that the one co-tenant.repudiated the authority of the other co-tenant to execute the contract on his behalf does not prevent a court of equity from requiring the partial performance under the circumstances of this case. It would violate well-established equitable principles to permit defendant to assign a reason for denying such relief that she had acted without authority. She was guilty of either fraud or innocent misrepresentation. The suggestion is made that she expected her co-tenant to join. Probably the complaint is sufficient as against a demurrer, to assert a fraudulent misrepresentation in the sense, at least, that the misrepresentation of a material fact as true, without knowing whether or not it was true or false, and which misleads the other party to the contract,
The conclusion thus reached on principle is sustained by the weight of specific authorities. On the one hand Keator v. Brown, 57 N. J. Eq. 600, 42 Atl. 278, is this identical case, in which it was held that partial performance may be decreed. This is also the opinion of the supreme court of the United States, although it may have been somewhat incidentally expressed. Cochran v. Blout, 161 U. S. 350, 354, 16 Sup. Ct. 454, 40 L. Ed. 729. Tillery v. Land, 136 N. C. 537, 48 S. E. 824, it will be found on close examination, is in accord. The substance of Tobin v. Larkin, 183 Mass. 389, 67 N. E. 340, is this: An agent, acting for two sisters, who supposed they owned the whole of a tract of land, contracted to sell it. In fact they owned only eleven-twelfths. It was held that, inasmuch as they were unable to-convey a perfect title, the plaintiff had a right to a conveyance of all their interest in the property if he chooses to take it, with a proper abatement in the purchase price on account of the part which they did not convey. Naylor v. Stene, 96 Minn. 57, 58, 104 N. W. 685, is in accord with the conclusion here reached, although it may not necessitate it'. On the other hand, the supreme court of California has accepted and enforced the view for which the' defendant contends.
Defendant has referred us to a number of authorities which are plainly distinguishable. In Stub v. Grimes, 38 Minn. 317, 37 N. W. 444, a contract which named seven persons with whom, according to its terms, defendants proposed to contract, was signed by four of them only. It was held that damages were not recoverable on its breach, because the contract was incomplete and did not bind defendant. That was an action at law for damages; this is a proceeding in equity for specific performance. That contract at no stage purported to be complete; this did. There no wrong or mistake was attributable to defendant; here defendant’s fault precludes his objection. In Snyder v. Neefus, 53 Barb. (N. Y.) 63, the agreement which the court 'refused to specifically enforce was subscribed by a third person, who purported to act as agent for two co-tenants. His authority failed as to one co-tenant. The other co-tenant was guilty of no fraud or mistake. The act of the agent in signing for him was authorized, but the unauthorized act of the agent in signing for the other co-tenant was not his act directly or indirectly. There is very grave doubt, moreover, whether this case is not at variance at many points with the views which are now generally accepted. In Price v. Griffith, 1 De Gex, M. & G. 80, it was held that where the contract was for the lease of a colliery as an entirety, and the defendant was not shown to have made any misrepresentation as to his title or otherwise, it could not be enforced against him. The case turned on its own particular facts. Lord Justice Knight Bruce said, inter alia: “Cases may be conceived where a person, who has contracted to convey more than he has it in his power to convey, ought to be decreed to convey what he can, either with or without compensation to the vendee for such part of the subject-matter of the contract as the vendor is unable to convey.”
The conclusion thus reached on the merits of the controversy controls this case, despite the objections to the mere form of the complaint. Defendant insists that that pleading is defective because it does not allege plaintiff’s ignorance of defendant’s lack of authority, or his reliance on defendant’s claim of authority, to sign for the co-
Reversed.
On April 10, 1908, the following opinion was filed:
PER CURIAM.
In her motion' for a reargument', defendant insists that the opinion of this court in this case fails to “take into consideration the fact that the parties whose names are in the contract were not and did not hold themselves out to be tenants in common.” It was assumed throughout the argument that the fact was otherwise. In defendant’s brief the following sentence is italicized: “The legal effect of the writing is that Kemp (owner of the divided half) and respondent (this defendant) are tenants in common.” The point is not available to defendant in this appeal. The change, moreover, in the opinion, if defendant’s present view was accepted, would be in terminology only.
Defendant also urges that “the tender in the complaint is not according to the contract.” Apart from the question whether this point was made by defendant on the original argument, the complaint alleges defendant’s refusal to carry out any of the promises of the agreement, due performance of such agreements on his part, and plaintiff’s readiness and willingness to pay defendant the balance of the purchase price, or a proportionate amount of the purchase price for such portion of said lot as defendant owned and was able to convey. The consideration to be paid on partial performance has not been determined to be one-half of the purchase price of the whole, but such proper part as the trial court may determine.
No other portion of the motion, calls for special consideration, in view of the opinions previously expressed herein.
Motion denied.