Christiansen v. Aldrich
| Decision Date | 28 May 1904 |
| Citation | 76 P. 1007,30 Mont. 446 |
| Parties | CHRISTIANSEN v. ALDRICH et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Choteau County; Jno. W. Tattan, Judge.
Action by Charles Christiansen against William G. Aldrich and another. From a decree in favor of plaintiff, defendants appeal. Affirmed.
This action was brought to enforce specific performance of a contract to convey certain real and personal property consisting of farm lands in Choteau county, and shares of the capital stock in an irrigation company. The complaint alleges, in substance, that under the terms of the contract which was entered into by the plaintiff and defendants on October 14, 1899, the plaintiff was to pay for the property the sum of $3,200--$1,100 upon that date, and the balance within a reasonable time--and defendants were to execute a deed and put it in escrow in the Stockmen's National Bank at Ft. Benton, Mont., to be delivered to the plaintiff upon his payment of the balance of the purchase price to the bank that the cash installment was paid and the deed executed and deposited in accordance with the terms of the agreement; that an error was made in the deed with reference to a certain water right used upon the land, and that on or about October 24, 1899, it was withdrawn from deposit for correction; that it was corrected, but that the defendants obtained possession of it, and never returned it to the depositary; that defendants have refused to convey the property; and that the plaintiff stands ready and willing to perform his part of the contract and make final payment whenever a deed is tendered him or deposited with the bank according to the agreement. The defendants admit the making of the contract as alleged in the complaint, except that it is averred that the deferred payment was to be made within seven days after the deposit of the deed. It is admitted that the cash installment was paid and that the deed was withdrawn from deposit for the purpose of correction; but it is alleged that it was thereupon returned to the bank, and remained there until after the expiration of the time allowed for payment, and after repeated, though fruitless, demands made upon the plaintiff for payment under the terms of the agreement, whereupon it was withdrawn. It is further alleged that about the middle of July, 1900, the defendants sold and conveyed the property to one Winters, who at once entered into the possession of it and has been the owner of it and in possession since the conveyance was made to him. There are in the pleadings allegations of both plaintiff and defendants of damages sustained by them, respectively, by failure on the part of the other to observe the terms of the contract; but the issues thus presented were mutually abandoned, and it is not necessary to notice them. The plaintiff's replication does not either generally or specifically deny that the terms of the contract were as alleged in the answer. The action was commenced and a notice of is pendent filed under the statute on July 9, 1900. The cause came on for trial on these pleadings on May 31, 1901. The defendants moved for judgment on the pleadings. The grounds of the motion are not stated, but we gather from the briefs of counsel that they were that the complaint does not state a cause of action, and that substantial new matters of defense alleged in the answer are not denied in the replication. Pending the motion, counsel for plaintiff asked leave, and were permitted, over objection of defendants, to amend the complaint by inserting therein the following: "That the plaintiff is now and since April 1, 1900, has been ready, anxious, and willing to pay to the defendants the said balance sum due on the purchase price of said lands, and now to the defendants tenders said sum, to wit, $2,100, and pays the same into court for the use of the defendants, and the plaintiff now demands the execution and delivery of said deed." Counsel then tendered to defendants and paid to the clerk the balance of the purchase price. The motion for judgment was then denied. Counsel for defendants then moved for a continuance on the ground that they were not ready to meet the allegations contained in the amendment. The court, after stating that the hearing would be continued upon a showing of surprise by defendants, and counsel having declined to make such showing, denied the motion. Counsel then asked that they be allowed the statutory time in which to file an amended answer after service of the amendment. This motion was also denied, the court stating that, if counsel desired, the hearing would be postponed for 24 hours. The court further stated that it was of the opinion that the amendment to the complaint was already sufficiently met by the allegations and denials of the answer. Thereupon objection was made to the introduction of evidence on the ground that the amended complaint failed to state a cause of action. This objection was overruled. The trial was then had, resulting in findings and a judgment in favor of the plaintiff, requiring the conveyance to be executed and delivered to plaintiff; omitting, however, the shares of stock, any claim to which plaintiff expressly waived. From the judgment and an order denying their motion for a new trial, the defendants have appealed. The grounds of the appeal are that the rulings referred to, with certain others upon the admissibility of evidence, were prejudicial to the defendants; that the judgment is not sustained by the pleadings; and that the findings are not sustained by the evidence.
Downing & Stephenson, for appellants.
W. B. Sands and Geo. H. Stanton, for respondent.
BRANTLY C.J. (after stating the facts).
1. It is argued that the complaint does not state a case for specific performance, within the purview of section 4410 of the Civil Code. In this we think counsel are in error. It is true, the facts and circumstances stated do not bring it within the provisions of subdivisions 1, 3, and 4 of this section; but the allegation of a breach of the contract to convey the land described is itself sufficient to raise the presumption that pecuniary compensation would not afford adequate relief. This brings the case within subdivision 2 of the section. It is not necessary for the plaintiff to allege special circumstances showing that he has no adequate remedy at law. Ide v. Leiser, 10 Mont. 5, 24 P. 695, 24 Am. St. Rep. 17; Baumann v. Pinckney, 118 N.Y. 604, 23 N.E. 916; Pomeroy, Equity Jurisprudence, §§ 221, 1402; Civ. Code, § 4413. Whether specific performance of a contract to purchase land will be compelled in the particular case depends upon the circumstances, and the relief will be granted or withheld, in the discretion of the court, though the plaintiff may have another remedy at law. Baumann v. Pinckney, supra; Brown v. Haff, 5 Paige, 235, 28 Am. Dec. 425.
It is argued that the complaint is defective in failing to allege that the defendants were the owners of the land in controversy at the time the contract was made. If it be a fact that the defendants entered into a contract which they could not perform, or that, since it was made, they have placed themselves in such a position that they cannot perform it, this is a matter of defense, and the duty to allege and prove it devolves upon them. Ide v. Leiser, 10 Mont. 5, 24 P. 695, 24 Am. St. Rep. 17; Greenfiled v. Carlton, 30 Ark. 547; Waterman on Specific Performance, 89. Conceding, however, that it should appear from the complaint that the defendants were the owners at the time the contract was made, and that the complaint is defective in failing to allege this fact, the answer of defendants aids the complaint by the allegation that since the contract was made the defendants have sold and conveyed the land in controversy to one Winter, who is now the owner and in possession of it, and has been since the said conveyance was made to him. This allegation carries with it the admission that the defendants were the owners at the time the contract was made, and thus cures the defect in the complaint. Lynch v. Bechtel, 19 Mont. 548, 48 P. 1112. Though the complaint might have been held bad on demurrer, yet, this admission being made, and the court having found for the plaintiff and entered a decree in his favor, the defendants may not be heard to urge on appeal that the complaint is fatally defective. Hershfield v. Aiken, 3 Mont. 442; Duignan v. Montana Club, 16 Mont. 189, 40 P. 294; Murphy v. Phelps, 12 Mont. 531, 31 P. 64; Northrop v. Boone, 66 Ill. 368. At best, the objection is technical, and does not affect the substantial rights of the parties. It must therefore be disregarded, as falling within the spirit of section 778 of the Code of Civil Procedure.
It is said that the complaint is defective for failing to show a tender of the balance of the purchase money before the action was brought. It is undoubtedly the general rule that, if a part of the purchase price is still due and payable, the plaintiff seeking to have the conveyance compelled must allege and prove a tender of it, and bring it into court. But the rule is...
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