Callaway v. Seaton
| Decision Date | 29 June 1923 |
| Docket Number | 23,494 |
| Citation | 194 N.W. 622,156 Minn. 224 |
| Parties | C. H. CALLAWAY v. HARRY O. SEATON |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to recover $1,792 and interest. Plaintiff's motion for judgment on the pleadings was granted by Nye, J. From the judgment entered pursuant to the order, defendant appealed. Reversed.
Judgment on the pleadings not warranted by allegations concerning assignment of land contract to plaintiff.
Plaintiff and defendant traded real estate, and, as a part of the trade, defendant agreed to assign a certain vendor's contract of land in Montana upon which $1,792 was unpaid. Defendant did so assign such contract. Thereafter plaintiff brought this action to recover the sum of $1,792, alleging that the vendor in the contract had never assigned the same to defendant, and that, therefore, defendant had breached his covenant of good right and lawful authority to sell and assign the vendor's contract. It is held:
(1) The averments in the answer that the assignment of the vendor's contract to defendant had been purloined by the assignor after its execution and before it could be recorded cannot be considered as an admission that defendant had not acquired title to the contract.
(2) The answer put in issue the allegations of the complaint that defendant had not a proper assignment of the vendor's contract when he assigned the same to plaintiff, hence it was error to grant the motion for judgment on the pleadings.
A. X Schall, Jr., for appellant.
John O. Loeffler, for respondent.
The appeal is by defendant from a judgment on the pleadings. On December 11, 1918, plaintiff and defendant entered a contract for the exchange of properties. The complaint alleges full performance, save as to one item, and, for defendant's failure to perform as to that, judgment was asked. The provision of the exchange contract in respect thereto is this: "And the party of the first part [defendant] further agrees to properly assign and guarantee to the party of the second part [plaintiff] one certain contract for deed, made on the 14th day of November, A.D. 1918, by and between R. J. Woods, as grantor, and Arthur Z. Lewis, as grantee, the contract conveying the W 1/2 and the N E 1/4 of section 13, township 10, north of range 31, east of Montana Meridian, except railroad right of way thereon, said contract having payable thereon the sum of $1,792.00 payable on or before December 1, 1923." It appears from the complaint that defendant purported to assign this contract by an instrument duly executed and acknowledged by him on February 3, 1919, which instrument is attached to and made a part of the complaint as Exhibit B. The answer alleges that this assignment was accepted by plaintiff as full performance of the exchange contract. For the purpose of a motion for judgment on the pleadings this allegation must be taken as true, and the judgment must then be predicated either upon the fraud pleaded or upon a breach of some covenant in this assignment. We need not consider the charges of fraud and misrepresentations contained in the complaint, for, in the oral argument, plaintiff's counsel conceded the denials in the answer put plaintiff to his proof as to a recovery on the ground of fraud or deceit.
The allegations of the complaint relevant to a breach of the covenants of the assignment are: "That the said R. J. Woods in fact never sold, assigned and transferred said contract for deed, or any of his right, title, interest or estate in or to the property therein specified to the defendant herein." Then follow allegations to the effect that, when plaintiff discovered that he had not acquired any interest in the property referred to by the assignment, he demanded the sum of $1,792, which sum defendant promised and agreed to pay to plaintiff, but which instead of so doing defendant has since pleaded for time and has tried to prevail on plaintiff to accept equities in other property in settlement of the indebtedness.
The answer admits the execution of the assignment, avers that there has been no default, and alleges that defendant has made offers of settlement in good faith; that plaintiff has not tendered a reassignment of the contract; that when the same was assigned by defendant it was in good standing; that defendant is informed and believes that said Woods, wrongfully assuming to own said contract, has assigned certain interests therein to other parties, which assignments have been recorded; that plaintiff wholly neglected to protect his interests by recording his assignment; that the assignment of the contract from Woods to defendant has not been recorded for the reason that the same was by Woods taken surreptitiously from defendant's safe, as defendant is informed and believes, for the purpose of defrauding defendant and putting him to loss and damage, and that this was done in pursuance of an understanding and agreement between said Woods and plaintiff to that end.
The pleadings seem to assume that Woods was the owner of the Montana land which he had contracted to sell to Lewis. And the complaint does not allege that Woods had sold or conveyed the same or any interest therein. The allegation...
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