Brown v. Eaton

• Court: Minnesota Supreme Court
• Writing for the Court: Gilfillan
• Citation: Brown v. Eaton, 21 Minn. 409 (Minn. 1875)
• Decision Date: 05 April 1875
• Parties: A. VANCE BROWN <I>vs.</I> GEORGE EATON.

Page 409

21 Minn. 409

A. VANCE BROWN vs. GEORGE EATON.

Supreme Court of Minnesota.

April 5, 1875.

Action for the specific performance of a contract to convey certain described land, in writing and signed by one Girart Hewitt, as defendant's agent. Defence, that Hewitt had no authority to enter into the contract, that defendant never agreed to sell or convey the land to plaintiff, that plaintiff has not performed or offered to perform on his part, and that defendant's wife has an inchoate right of dower in the land, and refuses to convey, by reason whereof defendant has ever been unable to give a good title, as plaintiff well knew. Trial in the district court for Ramsey county, before Wilkin, J., who found for the plaintiff, and ordered judgment accordingly: a new trial was refused, and defendant appealed.

Morris Lamprey, for appellant.

Chas. E. Otis, for respondent.

GILFILLAN, C. J.

This is a suit to enforce specific performance of a contract to convey real estate, tried by the court below without a jury, and judgment ordered for the plaintiff.

The defendant makes the point that the real estate was his homestead; that at the time of making the contract, he was a married man, and that the contract is void, because his wife did not join in it. This defence is not set up in the answer, and the court below does not find the facts to sustain it. Although it may be gathered from the evidence that a part, at least, of the real estate was probably defendant's homestead, it does not appear that plaintiff waived the pleading of this defence, or consented to try it without being pleaded. It cannot, therefore, be insisted on here.

The defendant, in his answer, denies the contract, and he insists that because, if it be true that the real estate was his homestead, and his wife did not join in the contract, it is void, and no contract, he can, under his denial, prove these facts. A mere denial of the execution of an alleged contract will not admit proof aliunde the contract to avoid it.

The alleged contract was made, on behalf of defendant, by Girart Hewitt, and was in writing subscribed by defendant, by the hand of Hewitt. The latter had, at first, written authority, subscribed by defendant, to sell the real estate, which authority was, by the terms of the writing, to continue for a limited time, and the price and terms of sale were prescribed by it. The contract of sale made by Hewitt to plaintiff was made after the time limited, and was for a price and on terms differing from those prescribed in the written authority. Plaintiff offered and was permitted, against defendant's objections, to introduce oral testimony to prove that, after the term of the original authority expired, the defendant orally extended the time for the agent to sell, and authorized him to sell at the price, and on the terms upon which the contract of...