88 P. 86 | Idaho | 1906
This is an action for the specific performance of a contract to convey land. It is alleged in
The defendants answered this amended complaint and denied the original contract set out in the complaint; also that plaintiff procured the deeds as alleged in the complaint, and deny generally all the allegations of the complaint excepting the allegation that Leslie A. Porter and Lolo C. Porter are husband and wife. For a further defense defendants aver that on or about the tenth day of March, 1903, plaintiff represented to defendant that he had powers of attorney from all the heirs having any property rights or interest in the property in Asotin county, Washington, for which plaintiff alleges that he procured the deeds; that the plaintiff did not have such power of attorney, and could not have procured such title to said lands, and did not know the persons in whom the title was vested, and did not, and could not, procure the title therefor to said land, or any part thereof, except the title and interest of one Nora Hart, an undivided one-twelfth interest in and to said land, and the right, title and interest of all other persons owning the remaining eleven-twelfths interest the plaintiff never did procure for defendant, and defendant lost nearly all the other interests, and was obliged to sell out and dispose of the interests that he had secured in and to said land, which was too inconsiderable for any use whatever, and because he could not procure the other interests which the said plaintiff had agreed to procure for him, and which he did not, and never could, procure; that plaintiff never had any power of attorney whatever from the heirs owning a larger portion of the interest in said land, and was never in any position to deal with them in any way whatever and other interests, to wit, the interest of Cora Jackson néeCora McBeam, for which he claimed to have a power of attorney to act, has been conveyed and disposed of by said Cora Jackson and William Jackson, her husband, prior to said plaintiff having any authority whatever to convey or to deal with the same. .It is then averred that defendant has been damaged in the loss of said property, and by virtue of the
Plaintiff answered the separate defense of defendants by denying each and all of the averments thereof. Defendant, Leslie A. Porter, filed his cross-complaint in which it is alleged that he is the owner and entitled to the immediate possession of the three and one-half acres of land in dispute, and alleging that on or about the twenty-second day of August, 1904, plaintiff, without any right, title or authority, entered into and upon said land and ejected his tenant, Miss Sadie Bashor, and cross-plaintiff, and ever since has by force and threats excluded and kept off from said land cross-plaintiff, and since last-mentioned date has taken from said place all of the fruits and products grown thereon, the rents, issues and profits thereof, without any right, title or authority, to the damage of cross-plaintiff in the sum of $50, for which amount he demands payment and for the immediate possession of said premises. All of the allegations of this cross-complaint are denied by plaintiff, and he avers that he has fully paid defendant Porter therefor, and was put into possession thereof by said defendant, and is now in such possession by reason thereof and no other.
A jury was waived and trial to the court, judgment for plaintiff entered and filed' January 15, 1906. The court found that the contract as alleged in plaintiff’s complaint was entered into by plaintiff and defendant, Leslie A. Porter, on or about November 10, 1903; that in pursuance of such agreement plaintiff procured the deeds and delivered them to Leslie A. Porter, and that said Porter accepted them, had them filed for record and duly recorded in the office of the recorder of the county of Asotin, state of Washington; that only $250 of the contract price has been paid, leaving a balance due from defendants to plaintiff of $1,250; that subsequent to procuring said deeds and delivery of same by plaintiff to defendant and the payment of said $250, to wit, on or about January 28, 1904, plaintiff and defendant, Leslie A. Porter,
Counsel for appellant assigns a number of errors occurring at the trial, but in his brief makes the following statement: “These assignments of error may very properly be discussed and considered as one assignment, .... for the reason that they relate to the insufficiency of the evidence to sustain the findings of fact, conclusion of law and decree.” Almost the entire brief of learned counsel for appellant is directed to a discussion of the evidence and an effort to show wherein it is insufficient to support the findings and judgment for specific performance. He insists that his motion for nonsuit should have been sustained, for the reason that the evidence did not support the allegations of the complaint, and that he should have been permitted to submit his proof on his cross-
It is shown by the record in this case that defendants not only offered proof in support of their cross-complaint, but met the issue and evidence of the plaintiff as offered in support of his complaint, hence they fall under the rule announced long since in this state; indeed, it was the rule before we were admitted as a state, and has been followed down to the present time. The authorities are referred to in Shields v. Johnson, supra, not only of this state, but other jurisdictions as well.
Counsel for appellant insists that “allegations of the complaint are insufficient to take the ease out of the statute of frauds, involving as they do the title to real estate and the specific performance of a contract for the conveyance of the same from the appellants to the respondent.” He says: “This contract is not based upon any written instrument or any promise whereby any part of the consideration was paid, or any memorandum in writing signed by the parties to the action.” It is true that courts of equity will not enforce a contract for specific performance unless its terms are plain and unequivocal and the party seeking its performance is without fault. With this statement we will ascertain what is shown by the record before hs. It is not disputed that appellant, Leslie A. Porter, and respondent entered into a contract whereby respondent was to procure deeds to certain real estate in Asotin county, Washington, for said appellant, and was to receive $1,500 for his services in procuring the same. This contract was a verbal one, but is admitted by the pleadings, the dispute being as to just what respondent was to procure for appellant, Leslie A. Porter, appellant insisting that
Appellant Leslie A. Porter testified. He insists that his first agreement with Robbins was that Robbins was to get a deed from all the heirs of the Timothy estate for which he would pay $3,000, and that the heirs named by Robbins were Cora Jackson, Ellen Winnier and Nora Hart. The next day he met Robbins and told him that he had a memorandum that John Silcott had given him, showing that Maggie Timothy was an heir to the Timothy estate; that Robbins assured him that Maggie Timothy was not an heir and that the others named were ail the heirs to said estate. He admits that the deed was executed according to a subsequent agreement as testified to by Robbins, and says it was to be placed in escrow and not delivered until Robbins complied with all his' part of both contracts. In rebuttal Robbins positively denied the statement of Porter with reference to the escrow agreement, and in fact all of his testimony excepting wherein it corroborated or tended to corroborate his own. It will be seen that the record is bristling with denials and contradictions on the part of both Robbins and Porter. It is conceded by Porter that he entered into the two contracts set out in the complaint; that he wanted to purchase the Timothy land; that the consideration was agreed upon and $250 paid on it; that after the second agreement the land was surveyed by the county surveyor, but that he did not employ him to do such work. The surveyor says both Robbins and Porter spoke to
This court has recently held that contracts of the character set out in the complaint in this action will be enforced without regard to the rule that requires a plaintiff who seeks to establish a trust in real property to make out his case “clearly and satisfactorily beyond a reasonable doubt.” The old rule requiring such proof has been relaxed by the modern decisions and especially by this court. In Morrow v. Mathews, 10 Idaho, 423, 79 Pac. 196, Mr. Justice Ailshie has very ably discussed the old as well as the new rule governing this class of cases, and the authorities on both sides of the question are collected and discussed.
After carefully considering the evidence in this case, we think the findings of fact by the court were fully justified. Counsel for appellant insists that the complaint does not support the judgment. We cannot agree with this contention. It occurs to us that the amended complaint upon which the case was tried was full and complete, and that the judgment should be sustained, and it is so ordered, with costs to respondent.
Since writing this opinion counsel for appellant calls our attention to a recent decision of the supreme court of the United States, entitled Oscar D. Halsell et al. v. Wm. Renfrew and R. J. Edwards, 202 U. S. 287, 50