Awbery v. Schmidt
| Decision Date | 11 December 1922 |
| Docket Number | 4904. |
| Citation | 211 P. 346,65 Mont. 265 |
| Parties | AWBERY v. SCHMIDT. |
| Court | Montana Supreme Court |
Appeal from District Court, Fergus County; Roy E. Ayers, Judge.
Action by James Awbery against A. J. Schmidt. From a judgment of nonsuit and an order denying a motion for new trial plaintiff appeals. Affirmed.
E. K Cheadle and Rufus Hopkins, both of Lewistown, for appellant.
Beldin & De Kalb, of Lewistown, for respondent.
An examination of the record discloses that this is a companion case to that of Kramer v. Schmidt, 62 Mont. 568, 206 P. 620. Both arise out of the same transactions. In this case the plaintiff in his complaint predicates his right of recovery on two causes of action, viz.: First, on a contract alleged, whereby the plaintiff assigned and transferred to the defendant a certain option contract for the sale of lands belonging to one John Bain, comprising 3,600 acres, at the price of $20 per acre, the defendant agreeing that if the plaintiff should, within 12 months from the date of the assignment, find a purchaser of the lands ready, able, and willing to purchase the same at $25 per acre, the defendant would accept such price, cause the lands to be conveyed to such purchaser, and share equally with the plaintiff the net profit on the sale so made; that the plaintiff within the time limited did find a purchaser ready, able, and willing to buy the land for the sum of $25 per acre, but that the defendant refused to sell the lands to the prospective purchaser at such price, and in consequence the plaintiff claims as damages commission from the defendant of one-half the profits which would have accrued on a sale of the land amounting to $9,000.
The second cause of action is an attempt to plead a quantum meruit for the value of the option contract assigned to the defendant.
A general demurrer was interposed to both causes of action which was by the court overruled as to the first cause of action, and sustained as to the second cause of action. In his answer the defendant denies the agreement alleged by the plaintiff and affirmatively pleads the statute of frauds in bar. The cause was tried to the court without a jury, and at the conclusion of plaintiff's case the defendant moved "for a nonsuit"; the court reserving its ruling thereon. At the conclusion of all the testimony the case was briefed and argued by counsel for the respective parties, and thereafter the court ordered "judgment to be entered herein for nonsuit and for costs and disbursements herein expended by the defendant." Judgment was entered accordingly, and the case is now before us on appeal from the judgment and from an order denying plaintiff's motion for a new trial.
As we view the case from the record, there are but three questions necessary to be considered, viz.: (1) Did the court err in sustaining the demurrer to plaintiff's second cause of action; (2) does the evidence sufficiently establish the contract upon which plaintiff predicates his first cause of action, and breach thereof by the defendant; and (3) does the contract come within the statute of frauds?
1. If the complaint or a cause of action pleaded therein states a cause of action on any theory, it will be sustained. Merk v. Bowery Min. Co., 31 Mont. 298, 78 P. 519; Donovan v. McDevitt, 36 Mont. 61, 92 P. 49; Raymond v. Blancgrass, 36 Mont. 449, 93 P. 648, 15 L. R. A. (N. S.) 976; Cassidy v. Slemons & Booth, 41 Mont. 426, 109 P. 976; Stadler v. City of Helena, 46 Mont. 128, 127 P. 454; Hicks v. Rupp, 49 Mont. 40, 140 P. 97; Decker v. Decker, 56 Mont. 338, 185 P. 168; Wing v. Brasher, 59 Mont. 10, 194 P. 1106; Kirkup v. Anaconda Amusement Co., 59 Mont. 469, 197 P. 1005, 17 A. L. R. 441.
But in this instance the second cause of action attempted to be pleaded falls short of stating a cause of action in essential particulars, and in our opinion the court was correct in sustaining the demurrer thereto. It is alleged merely that the "plaintiff sold, assigned, and set over to the said defendant his said option contract, * * * that in pursuance and by virtue of the said option contract the said defendant thereupon and thereafter purchased the said tract of land from the said Julius Bain, and paid him therefor the sum of $72,000, the price expressed in the said option contract," and "that the reasonable price to be paid to this plaintiff for the assignment of the said option contract * * * was the sum of $9,000." These allegations do not state a cause of action against the defendant, first, in that there is no allegation that the assignment was made to the defendant at his special instance or request; and, second, there is no allegation as to the reasonable value of the option assigned. All of the facts pleaded may be entirely true, and yet no responsibility attach to the defendant. The court will indulge the presumption that the plaintiff has stated his cause of action as strongly as he can, and in a case of this character the complaint is clearly insufficient without allegation that the assignment was made at the request of the defendant. Conrad National Bank v. G. N. Ry. Co., 24 Mont. 178, 61 P. 1.
2. We have carefully examined and reviewed all of the evidence, and therefrom conclude that the district court was right in ordering judgment in favor of the defendant. The proof falls short of showing a breach of contract. The agreement is satisfactorily shown, but the evidence does not sufficiently establish that the plaintiff did in fact secure a purchaser of the land ready, able, and willing to buy the same at the agreed price of $25 per acre. On this phase of the case, plaintiff's cause of action must stand or fall upon the testimony of John J. Willis, he being the alleged purchaser of the lands procured by the plaintiff in fulfillment of his part of the agreement. His testimony is very unsatisfactory and contradictory, and, were we to base our decision on isolated statements in his testimony, decision could be reached either in favor of or against the plaintiff, on the question as to whether he in fact procured a purchaser ready, able, and willing to buy the land.
Mr. Willis testified:
"Q. Did you have any conversation with Mr. Awbery, perhaps in the month of May, 1917, about buying the Julius Bain ranch? A. Yes, sir. Q. And what was that conversation between you and him? A. Well, we started over there to look at it once; I wanted to go and see it, and he priced it at $25 an acre, and I was going to interest my father and uncle in it, if it was what he represented it, and the car broke down about two or three miles from Geyser, and it was raining, and we hiked into town, couldn't get a part for the car, and I and a Colorado man that was with them going over on the same trip, we came back to town. Q. Had you had dealings prior to this time with Awbery? A. Well, we had bought one ranch together, yes. Q. Did you have confidence in his judgment respecting land? A. Why, yes, I give Mr. Awbery credit for knowing land; yes, sir--bought several places. Q. What was your intention with reference to this land? A. Well, I was out to buy it if I could. Q. Your father and uncle had sufficient means? A. Yes, sir. Q. And what directions or authority had you from them, or either of them? They were to furnish the money? A. Not all of it. I was to furnish some. Q. You had some yourself, did you, Mr. Willis? A. Certainly did. Q. And about what means did you have yourself at the time? A. I had $10,000 or $12,000 of my own. Q. Ten or twelve thousand of your own; and where did you expect to get the remainder of it? A. From them. Q. From whom. A. Father or uncle. They both wrote me about-- Q. Have you the letters? A. No, sir. Q. Do you remember the contents? A. Well, only in regards if I found a good buy out here--
By the Court: Do you remember them? A. Yes, sir; that is, to a certain extent.
By the Court: You may go ahead. A. Well, if I found a good buy, any lands--in any lands--to let them know, that they were willing to invest. Q. They were willing to? And was it your intention to buy this land at that price of $25 an acre? A. I considered it a good buy according to what Mr. Awbery said. Q. Well, was it your intention to buy it? A. Yes, sir."
On cross-examination he said:
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