delivered the opinion of the court.
It appears from the transcript that on the fourteenth day of November, 1904, the plaintiff was the owner of one hundred and sixty acres of land situated in Fergus county, in this state, and the defendant had in his possession two certain certificates, called “State University Educational Land Sale Contracts,” issued by the state of Nebraska, showing his right to become the owner of certain land in Webster county, in that state, upon the payment of the sum of about $500, which was the balance of the purchase price thereof. While there is no very specific testimony on the subject, the record of their subsequent conduct discloses the fact that the parties entered into an oral agreement pursuant to which the plaintiff deeded to the defendant the land in Fergus county, and the defendant gave to the plaintiff assignments of the Nebraska land certificates, together with the sum of $500 in money. The plaintiff testified that, at the time of the transfers, the defendant said: ‘ ‘ This land is absolutely clear in title; and, if anything turns up at any time between you and it, I will stand between you and it.” It further appears that, upon going to Nebraska with his family to take possession of the land, he found one Norris in possession of the same, claiming to be the owner thereof; that, upon a claim to said land being made by Ross by virtue of the certificates so assigned to him by Saylor, Norris began an action in the district court of Webster county, Nebraska, against the parties to this action, as a result of which the court decreed that Norris was the owner of the land in question and that his title thereto should be quieted as against any claims of either of the parties to this action; that the plaintiff expended $100 for counsel fees in defending the Nebraska action, paid $173.55 court costs pursuant to the judgment entered in favor of Norris, and expended $150 in removing his family from Montana to Nebraska. The object of this action is to recover the value of the Fergus county land, which is alleged to be $2,500, less $500 paid to the plaintiff by the defendant, together with the several amounts ex
The first contention of appellant is that the complaint states two separate and distinct causes of action, viz., one for damages on contract, and the other for damages in tort, and that the district court erred in overruling a motion made by him to compel the plaintiff to state these causes of action separately and number the same. The position assumed by the respondent in this court, and the one apparently taken by him in the court below, is that the complaint states but one cause of action, to-wit, an action for breach of an agreement to convey an estate in real property for the purpose of recovering the damages provided for by section 6054, Revised Codes, which section reads as follows: “The detriment caused by the breach of an agreement to convey an estate in real property is deemed to be the price paid, and the expenses properly incurred in examining the title and preparing the necessary papers, with interest thereon; but adding thereto in case of bad faith, the difference between the price agreed to be paid and the value of the estate agreed to be conveyed, at the time of the breach, and the expenses properly incurred in preparing to enter upon the land.” Respondent contends that the estate agreed to be conveyed to him was of no
We have carefully examined the complaint, and feel satisfied that the only reasonable interpretation thereof is that contended for by the respondent. If the agreement between the parties had been for an exchange of the Montana lands which the plaintiff owned, for the actual lands in Nebraska, and the defendant had had the legal title to the latter, we have no doubt that a refusal on the part of the defendant to transfer the Nebraska lands to the plaintiff would create a liability for “breach of an agreement to convey real property” in accordance with section 6054, supra, provided, of course, that the agreement as entered into was valid and binding upon the defendant. That section reads, as aforesaid, “An agreement to convey an estate in real property”; and we can see, in principle, no difference between an agreement to convey a legal estate and an agreement to convey an equitable one. We therefore hold that the court below was correct in its interpretation of the complaint.
The foregoing also applies to that assignment of error found in appellant’s brief which relates to the action, of the court in refusing to strike out certain allegations of damages claimed by the plaintiff. The complaint alleges as follows: “That the defendant, in making said sale and transfer to this plaintiff, acted in bad faith, and induced plaintiff to enter into said agreement by fraud and false representations, well knowing that at the time he represented to the plaintiff that he, the said defendant, was seised and possessed of the said lands in the state of Nebraska, that he, the said defendant, had formerly, through an agent, sold, transferred, and assigned all his rights and title in and to said lands to one Charles S. Norris, and received payment therefor, and said representations were made by defendant with intent to deceive and defraud plaintiff, and that plaintiff relied upon the said representations of defendant, and, believ
One of the defenses interposed by the defendant in his answer reads as follows: “That the cause of action on the ground of fraud alleged in plaintiff’s third amended' complaint is, and was at the time of the commencement of this action, barred by the statute of limitations, and is, and was at said time, barred by subdivision 4 of section 524 of the Code of Civil Procedure, as amended.” The court, on motion of the plaintiff, struck this defense from the answer. The section referred to relates to actions for relief on the ground of fraud or mistake, and, as we-interpret the complaint, could have no application to the cause of action upon which the plaintiff relied; and therefore the defendant was not prejudiced in any of his legal rights by having the same stricken from his answer, although it may be questionable whether, in view of the fact that in this state the bar of the statute of limitations is an affirmative defense (see American Mining Co., Ltd., v. Basin & Bay State Min. Co., ante, p. 476, 104 Pac. 525), it is strictly proper practice to strike such an allegation from the answer. It will readily be seen that an allegation of this nature might raise a question of fact, and therefore an order striking the same would be prejudicial error.
In addition to the testimony of the plaintiff heretofore quoted, he was allowed, over objection of the defendant, to testify as follows: “I says, ‘That land is clear in title, is it?’ He says: ‘Yes, sir; it is. I will stand between you and any loss.’ I says, ‘I will accept the proposition.’ ” Appellant contends, that the reception of this evidence was error in that it tended to vary the terms of a written contract by parol, to-wit, the written assignments of the Nebraska land contracts. No other objea
Defendant requested the court to instruct the jury that none of the elements of special damages claimed by plaintiff could be recovered by him. This the court refused to do, and error is assigned. The objection to these items of damages, however, is based upon defendant’s contention that this is not an action to recover for breach of an agreement to convey an estate in real property, and, as we have decided that question adversely to him, it follows that his requests for instructions were properly refused.
The court, among other instructions, gave the following: “If you believe from a preponderance of the evidence that the defendant, Saylor, represented to the plaintiff, Ross, that his title and interest in the Nebraska lands was all right, and that he could procure patent for the said lands upon the payment of the sum of $504, or that he agreed to make good in case title was not right, and' that Ross could not secure possession of the said lands, then you are instructed that yo,u should find for the plaintiff, and that his detriment or loss in the case is the price paid, which in this case is the value of the one hundred and sixty acres of Fergus county land, agreed by both parties to be the sum of $2,000. Otherwise you will find for the defendant, which is, in effect, a finding that the plaintiff has. suffered no damage for which the defendant is responsible.”'
As will be observed, the instruction quoted is not in accordance with the respondent’s theory of his cause of action as expressed in this court, nor that of the trial judge as evidenced by his remarks heretofore quoted; and it introduced an element of confusion and uncertainty into the case which might have been avoided. However, we are of opinion that the appellant suffered no prejudice thereby. The primary question before the jury was: Did the parties enter into the contract claimed by the respondent? This alleged contract was the foundation of his claim against the appellant. The latter admitted an agreement to exchange his interest in the Nebraska lands for the lands of respondent. The trial court very properly charged the jury that the decree of the Nebraska court was conclusive evidence that the so-called assignment of the land contracts by Saylor to Ross was of no effect, and transferred no interest in the lands to Ross. This being true, a cause of action in favor of Ross immediately accrued, and, as hereinbefore stated, the evidence of Saylor’s bad faith in the transaction was so conclusive that no jury could possibly have found that issue in his favor. The statute (section 6054, Revised Codes, supra) gave the cause of action for the enlarged measure of damages; so that the court’s instruction aforesaid, if the jury applied it in favor of the respondent, might afford an additional reason why Ross was entitled to relief, but could, in fact, add nothing to the measure of that relief. Defendant’s liability was fixed and determined by other facts in the case, which the jury must have found against him; and although the instruction, in view of the respondent’s avowed position, should not have been given, we are not inclined to reverse the cause for that reason, in the light of the fact that respondent’s claim is so manifestly just,
It is contended by counsel for the appellant, but not with any great force—it is merely a suggestion in the brief—that the expenses incurred by the respondent were not “expenses properly incurred in preparing to enter upon the land.” We think there is no merit in the suggestion. It is difficult to see how the respondent could avoid the payment of any of these amounts, and at the same time make a Iona fide effort to enter upon the land, and keep faith with the appellant.
The jury returned a verdict for $500 “for necessary expenses in preparing to take possession of the land.” The court in its instructions employed the words of the statute, viz., “expenses properly incurred.” We see no substantial difference between the two expressions, and think the verdict was sufficient in that regard, in the absence of an objection thereto at the trial.
In conclusion we may say that, while indeed there are technical errors to be found in the record, we think they were not prejudicial to the appellant; and in so determining we are solaced by the thought that the jury reached the right conclusion, and that substantial justice was meted out to both parties.
It is conceded that the judgment is $76.45 in excess of the amount of the verdict. It is therefore ordered that the judgment be modified by the district court by deducting therefrom the sum of $76.45, as of the date of its rendition, and, as so modified, the judgment is affirmed. The order denying a new trial is also affirmed. Respondent shall recover his costs on appeal.
Modified and affirmed.