Pottgieser v. Dorn

| Minn. | Jul 15, 1870

By the Court

Berry, J.

Without entering into dejtails, we are of opinion that the judge below was warranted by the testimony in finding as a conclusion of fact, that the contract declared on was signed with the name of the defendant, by the hand of his son, in defendant’s presence, and by his direction. And the conclusion of law, “ that the said defendant bound himself by the contract, signed as aforesaid, to the same extent as if he had written the signature himself,” is clearly correct. We are also of opinion that the conveyance of the land by Pottgieser to Spencer, made “ only with the view and for the purpose of a sale thereof to the United States,” (as it is expressed in the writings to have been understood by all parties,) such conveyance being made snbject to a reconveyance in case the sale to the United States should not be effected — together with, the conveyance to the United States by Spencer, amounted substantially to a sale to the United States within the meaning of the contract upon which this action is founded. The important thing in this respect, was that the property should be sold to the United States, that the custom house might be located thereon to the anticipated benefit of the defendant’s neighboring property. And this object was substantially accomplished in this case by the conveyance to the United States through Spencer, who so far as this action is concerned may properly be regarded as a mere conduit. In this view of the matter, there was no error in the admission of the deeds and the agreement respecting the conveyance. The parol admissions of the defendant were also properly received as having a tendency to prove that the contract declared on was signed for the defendant, and that he understood that he was liable thereon.

The contract declared on bound the defendant to pay his subscription in case Pottgieser should sell the property to the United States for $12,000, and as is stated in the contract, inasmuch as Pottgieser demanded more than $12,000, the object of the subscription was to secure to Pottgieser something towards making up the difference between that sum and the price demanded. Under these circumstances, t was of course not necessary for Pottgieser to sell for the precise sum of $12,000. lie might within the spirit and meaning of the contract sell for that sum, or for less, though not for more. The sale for $12,000 or under, was then necessary to the plaintiff’s recovery, and the defendant insists that the judgment cannot be supported because the plaintiff made no proof upon this point. Now the complaint alleges that Pottgieser sold for $12,000, while the pnly attempt in the answer to controvert this statement of the complaint is by a general denial of each and every allegation of the complaint, and every part and portion thereof. No evidence was offered by the plaintiff as to the price for which Pottgieser sold the land, but we are of opinion that upon the pleadings it must be taken to have been admitted that the price was $12,000. The formal' denial of the allegation of the complaint as to the price was a negative pregnant, and therefore bad, and insufficient, Lynd vs. Picket, 7 Minn. 194; Dean vs. Leonard, 9 Minn. 198.

The denial that the price was $12,000, left it to be inferred that it might have been $1 or more less than $12,000, which would have been a sufficient and substantial compliance rvith the requirements of the contract as price.

The denial being then insufficient, the allegation of the complaint stood admitted; there was no proper issue upon it, and it was unnecessary for the plaintiff to offer proof of it. Something is said in the defendant’s brief aa to a “ variance” between the contract offered in evidence, and that set up in the complaint, but we are not particularly informed in what the variance consists, and we discover none of importance.

Judgment affirmed.