Arnett v. Smith
| Decision Date | 17 January 1902 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
Action by William H. Arnett against Elmer E. Smith. Judgment for defendant, and plaintiff appeals. Affirmed.
Affirmed.
Pierce & Von Neida and Ball, Watson & Maclay, for appellant.
Turner & Lee and Morrill & Engerud, for respondent.
Action upon an account stated. The defendant denies that an account was ever stated between the parties, and further denies that he is indebted to the plaintiff in any sum whatever. As a further defense, and by way of counterclaim, he asks that the plaintiff be compelled to specifically perform his covenants contained in a written contract for the purchase of certain real estate situated in Cass county. The plaintiff claims that the written contract referred to was superseded by a settlement between the parties and his cause of action is based upon a balance claimed to be due upon such alleged settlement. To properly understand the issues which were presented to the trial court for determination, it will be necessary to state the substance of the pleadings: Plaintiff for cause of action, alleges that on the 5th day of July, A. D. 1900, an account was stated between the plaintiff and defendant, and upon such statement a balance of $ 475 was found due to the plaintiff from the defendant; that the defendant agreed to pay the same on the 5th day of August thereafter, and that he has not paid the same, nor any part thereof. The defendant challenges the allegations of the complaint by a general denial, and alleges that on the date of the so-called settlement a written contract was in existence between the parties; that plaintiff, either fraudulently and falsely or by reason of his mistake as to the rights of the parties under such contract, claimed that defendant was in default in the performance of said contract, and claimed that he had a right to rescind the same; that plaintiff fraudulently or falsely influenced the defendant to believe that he was in default and while so influenced, and without default or negligence on his part, he "was induced to enter into negotiations for a settlement of his supposed liability to plaintiff by reason of his supposed breach of said contract, but said negotiations were never completed or executed"; that immediately upon the discovery of his legal rights under the contract he notified the plaintiff that he would insist upon carrying out the terms of the written contract. The defendant further answering, and by way of counterclaim, alleged that on the 23d day of May, A. D. 1900, he was, and ever since has been, the owner of the following described real estate, towit, the S. 1/2 of section No. 31, in township 141 N., of range 49 W.; that on said last-named date the plaintiff and defendant entered into a written contract whereby defendant agreed to sell and plaintiff agreed to purchase the land above described upon the conditions and terms stipulated in said contract, which contract was attached to and made a part of the answer; that on the 2d day of June, A. D. 1900, defendant tendered to the plaintiff an abstract of title and a warranty deed to said premises at Pontiac, in the state of Illinois, as agreed in the contract, but that plaintiff then and ever since has refused to accept the same, and to pay the purchase money specified in said agreement, and to execute the notes and mortgage in said agreement described. Defendant further alleges that on the 25th day of August, A. D. 1900, and prior to the commencement of this action, he again tendered to plaintiff the abstract and deed to said premises, and that the plaintiff again and still refuses to make the payment and execute the notes and mortgage as agreed in said contract; that the defendant now is, and at all times has been, able, ready, and willing to perform the conditions of said contract then to be performed, and prays for judgment directing the plaintiff to perform his covenants in said contract of purchase. The contract in question, so far as material, is as follows: The plaintiff, in his reply, admitted the execution of the contract, but denied that the defendant had tendered the deed and abstract to him on June 2, 1900, or at any time prior to the 5th day of July, 1900, as stipulated in said contract, and alleged that the abstract which was submitted and tendered on June 2, 1900, was not sufficient, in this: That it did not disclose a good and merchantable title in the defendant; that on the 26th day of June, 1900, he notified the defendant that he then rescinded said contract because of defendant's failure to deliver an abstract showing a merchantable title, and demanded the repayment of the $ 500 theretofore paid by him on the purchase price; that thereafter, and on the 5th day of July, 1900, the subject-matter of said written contract was settled between the plaintiff and the defendant, and an account stated, as alleged in plaintiff's complaint. A jury was called to try the case. At the close of the testimony, upon motion of the defendant's counsel, a verdict was directed against the plaintiff upon his cause of action. Thereupon the court proceeded to try the issues presented by the equitable counterclaim and the plaintiff's reply thereto. Findings of fact and conclusions of law were made and filed favorable to the defendant, upon which a decree of specific performance was subsequently entered as prayed for by the defendant. Thereafter the plaintiff moved for a new trial upon a settled statement of the case. This was overruled. Plaintiff has appealed from the order denying his motion, and has also taken a separate appeal from the judgment. The last-named appeal is taken upon the judgment roll proper. A new trial is not demanded in this court, the errors relied upon being assigned upon the statutory judgment roll. The two appeals are presented together.
No questions of practice are presented by counsel for either party. Nevertheless we deem it proper to state that correct practice requires that the equity issues presented by the defendant's answer should have been first tried and determined by the court. Had this been done, no issue of fact would have been left for the jury, and we would not be embarrassed by the anomalous record here presented. The established procedure is that, "when an equitable defense is presented, it is to be decided by the court as if it were an equitable proceeding, before other issues are determined, because the determination of the equitable issues in favor of the defendant would put an end to the litigation and obviate the necessity of trying the legal issues involved." 7 Enc. Pl. & Prac. 810, 811, and cases cited. It will be seen that plaintiff's legal theory is that the written contract of May 23d was entirely superceded and annulled by the subsequent oral contract of July 5th, and that such oral contract is valid and binding upon both parties. If this position is legally sound, it will be conceded that the court erred in directing a verdict against the plaintiff and in decreeing a specific performance of the contract. But if, on the other hand, the written contract was not superceded by the oral contract, in that event it will be conceded that the verdict was properly directed, and the judgment of the trial court was proper. The facts which we deem material to a solution of the questions presented are not in dispute. Wyman & Ball, real estate agents at Fargo, acted as defendant's agents in selling the land to plaintiff. Before forwarding the deed and abstracts of title to plaintiff, they submitted it to their attorneys, Ball, Watson & Maclay, for an opinion, but did not...
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