213 P. 248 | Mont. | 1923
delivered the opinion of the court.
The complaint in this action alleged that at all times therein mentioned plaintiffs were the owners of a certain described tract of land located in Sanders county, Montana; that on October 14, 1920, by a contract in writing, they agreed to sell and convey this land to the defendant for the sum of $6,000, and that the defendant agreed to purchase it and to pay said amount therefor in installments, to-wit, $500 at or before the execution of the contract, $500 on the first day of January, 1921, and the balance on specified dates until the whole amount was paid, and that all deferred payments should bear interest
The defendant filed an answer, admitting the execution of the contract, and alleged that at the time the contract was executed, and as a part of the same transaction wherein the defendant purchased the land and entered into the contract, the plaintiffs had made certain false and fraudulent representations to him with reference to the condition of the land and the barn located thereon, and “that as soon as the defendant learned said fraud he demanded a return of said purchase money so paid to plaintiffs, and tendered and offered to return, and still offers to return, all that he had received under said contract and purchase, and to transfer and convey the same to the plaintiffs, and has rescinded and does rescind said contract, ” and demanded a return of the $500 paid, and other
The case came on for trial on January 27, 1922, and a jury was duly impaneled “as advisory to the court,” whereupon the plaintiffs tendered in court and filed with the clerk a deed conveying the land in question to the defendant. When the plaintiffs sought to introduce testimony, the defendant interposed an objection thereto on the ground that the complaint did not state a cause of action, which objection was sustained. Thereupon the defendant dismissed his counterclaim, and judgment for costs was entered against the plaintiffs, from which judgment this appeal was taken.
If the allegations of a complaint warrant a recovery by plaintiff in any amount and upon any admissible theory, it will withstand a general demurrer or an objection to the admission of evidence. (Hurley v. Great Falls Baseball Assn., 59 Mont. 21, 195 Pac. 559.)
Plaintiffs state in their brief that this is a suit for the specific performance of a contract, and this theory apparently was adopted by the court at the beginning of the trial, as a jury was impaneled to try the issues “as advisory to the court.”
The questions presented for consideration are: (1) Upon the breach of the contract by the defendant in failing to make the payments therein provided, had the plaintiffs a right to bring an action to compel him to specifically perform the contract; and, if so, (2) are the allegations of the complaint sufficient to entitle them to that relief?
1. Beyond question, if defendant had paid or tendered the full amount of the purchase price of the land he could have maintained an' action to compel the plaintiffs to specifically perform the contract on their part by the execution and delivery of a deed to him. By the provisions of section 8715, Revised Codes of 1921, when either of the parties to an obligation is entitled to a specific performance' thereof, the other party is also entitled to it.
In 25 B. C. L., p. 171, it is said: “According to the weight of authority the remedy by specific performance is mutual as between the vendor and vendee, and therefore the vendor may obtain in equity a decree of specific performance of a contract for the sale of land although he may have another remedy by action at law for the purchase money. (Morgan v. Eaton, 59 Fla. 562, 138 Am. St. Rep. 167, 52 South. 305; Hodges v. Kowing, 58 Conn. 12, 7 L. R. A. 87, 18 Atl. 579.)”
Under our statute, supra, and the foregoing authorities the plaintiffs were entitled under the conditions set forth in their
2. The defendant’s objections to the sufficiency of the com- plaint were numerous, but since he has not appeared in this court to sustain them by argument or authority, we feel justified in accepting the plaintiffs’ statement that' his principal contentions in the trial court, and the ones upon which the court relied in sustaining the objection to the introduction of testimony, were that the complaint failed to allege an adequate consideration for the contract entered into, and that as to the defendant the contract was just and reasonable, and, therefore, specific performance could not be enforced under the provisions of section 8721 of the Revised Codes of 1921, which provides that specific performance of a contract cannot be enforced against a party to a contract if he has not received an adequate consideration for the contract, or if it is not, as to him, just and reasonable.
These contentions cannot be maintained. The contract upon which the action was based was attached to and made a part of the complaint. By the provisions of sections 10606, 7512 and 7513, Revised Codes of 1921, a written instrument is presumptive evidence of a good and sufficient consideration, and the burden of showing a want of consideration sufficient to support an instrument lies with the party seeking to invalidate it.
Speaking of section 4417 of the Codes of 1895, which is identical with section 8721, supra, in the case of Finlen v. Heinze, 28 Mont. 548, 73 Pac. 123, this court said: “The evident meaning of this section is that any one of the subdivisions furnishes a defense to an action for specific performance. In other words, when specific performance is sought against a party he may interpose any one of the defenses named above, and if he can maintain it, he defeats the action. The burden as to such defense is upon him who asserts it.” (See, also, In re Grogan’s Estate, 38 Mont. 540, 100 Pac. 1044;
The judgment appealed from is reversed, and the cause remanded to the district court of Sanders county.
Reversed and remanded.