73 Ind. 153 | Ind. | 1880
— The questions presented by this appeal arise upon the ruling of the court sustaining the appellee’s motion in arrest of judgment. The complaint is based upon the following written contract, viz.:
“Zionsvtlle, Ind., March 24th, 1877.
“If an eighty-acre tract of land described as follows: The north half of the northeast quarter of section four (4), township eleven (11) south, of range eight east, located in Hardin county, 111., be not disposed of at this date — said land being placed in the hands of a party for disposal — then J. A. Perrill agrees to make to J. J. Newman a warranty deed for above described land. If, however, it is negotiated
“J. A. Perrill.”
There are no allegations in the complaint that in any wise assist in the construction of the contract, and it must be construed as it is written, without any aid from extrinsic matters. It is not alleged that the land in Hardin county, Illinois, had not been disposed of at the time the contract was executed. The breach assigned is that the appelleefailed to convey the land in Hardin county, or to convey the land in Missouri, or to pay the appellant the sum of one thousand dollars, or any part thereof.
The appellant in his original brief insists that the contract sued on should be deemed a promise to, pay the sum of one-thousand dollars, with the privilege, if exercised within ninety days, of paying by the conveyance of property. The contract will not bear any such construction. The sum of one thousand dollars is the penalty named in the bond to secure the performance of the acts which the obligor undertook to perform. The obligee can only recover by showing the failure to perform and loss resulting.
The complaint does not show a failure of performance in respect to the land in Hardin county, Illinois, for the-reason that it does not aver that the land had not been ¡disposed of when the contract was executed. The appel
The right to demand a conveyance of lands in Missouri -can not be enforced. The contract is one which the statute of frauds requires shall be in writing, and, as there is no real •estate at all described, the contract is not valid. There is no attempt at description, and there is, therefore, no contract for the conveyance of lands. As the contract is invalid, there can be no right of action grounded upon it. Dingman v. Kelly, 7 Ind. 717 ; Baldwin v. Kerlin, 46 Ind. 426 ; Miller v. Campbell, 52 Ind. 125.
Appellant argues that, as the court had overruled demurxers to the complaint, it could not afterwards rightfully sustain a motion in arrest. We do not think that the court, by ruling wrongly upon the demurrers, precluded itself from afterwards ruling rightly upon the motion in arrest. If, when the motion was presented, the court deemed the complaint so clearly bad as not to be sufficient to sustain a judgment, it was right to arrest the proceedings at that stage, notwithstanding the fact that at an earlier stage the court had entertained a different opinion.
A complaint fatally defective is vulnerable to attack, even upon appeal, and there can certainly be no error in declaring a fatally defective complaint bad on motion in arrest, although demurrers may have been previously overruled. It is the duty of the court not to permit a judgment to be entered upon a complaint which is so clearly insufficient as to afford the judgment no foundation. There can be no valid judgment without a sufficient complaint, and, where a party’s •complaint is incurably bad, he can not justty complain of any ruling which prevented him from obtaining a judgment based upon it.
We are not unmindful of the doctrine'that there are many ■defects which .are aided by a verdict, nor have we any indi
There can be no doubt as to the meaning of the contract. Perrill undertook to convey the land in Hardin county only ■on one contingency, and that was that it had not been disposed of. He did not undertake to convey unconditionally, but, upon the contrary, explicitly provides that in one case ■only will he agree to convey, and that case is, to borrow the language of the contract, “if it be not disposed of at this date — said lands being placed in the hands of a party for disposal.” To make a prima facie case, — and all complaints must do that or be adjudged bad, — it was necessary that the complaint should aver that the Hardin county land had not been disposed of. Certainly it was necessary to state some fact from which it could be reasonably inferred.
We hold the complaint bad so far as concerns the Hardin county land, because it does not state some fact or facts, from which it can be inferred that the land had not been disposed of when the contract was entered into. We do not pronounce against it because of defective allegations, or insufficient statements, but.because there is a complete and absolute absence of all facts and all allegations upon that subject. If there were aiiy facts or statements, upon which we could found an intendment in favor of the pleading, we should unhesitatingly declare that the motion in arrest should not be allowed to prevail.
Judgment affirmed.