Clark v. Dye

• Decision Date: 15 February 1924
• Docket Number: No. 23751.,23751.
• Citation: 197 N.W. 209,158 Minn. 217
• Parties: CLARK v. DYE.
• Court: Minnesota Supreme Court

158 Minn. 217

197 N.W. 209

CLARK

v.DYE.

No. 23751.

Supreme Court of Minnesota.

Feb. 15, 1924.

Appeal from Municipal Court, of Minneapolis; Gunnar H. Nordby, Judge.

Action by Mary M. Clark against William M. Dye. From a judgment for plaintiff, defendant appeals. Affirmed.

Stone and Dibell, JJ., dissenting in part.

Syllabus by the Court

A notice to terminate a contract for deed for default in payment is sufficient in respect to signature when it describes the contract so that it could be identified, even though it is unsigned by the owner, but is signed by her attorney individually, but to the left of the signature is the attorney's name followed by language showing that he is the attorney for the owner.

The statute does not require such notice to specify the amount claimed to be due.

An erroneous allegation in the original complaint to the effect that the amount in default covered all money unpaid, which is corrected in an amended complaint, does not put a construction on the notice itself so as to render it void.

An alleged defense held to be in nature legal and not equitable.

An agreement if vendee would make current payments vendor would carry along past due payments without default is without consideration and therefore not a contract.

Answer and offers of proof held not stating an equitable defense, and also not stating facts sufficient to constitute estoppel, and also as not stating facts sufficient to constitute waiver.

Essential elements of waiver specified. Waiver cannot be predicated on indefinite language (citing Words and Phrases, vol. 8, First Series, ‘Waiver.’)

A vendee in default must do more than to show that a third person was ready, willing, and able to furnish the money for him. He must tender payment.

The vendee loses all rights at the expiration of the 30 days.

The municipal court of Minneapolis in forcible entries and unlawful detainers cannot entertain (1) a motion for a new trial; (2) a motion for judgment notwithstanding the verdict. It can, however, (a) dismiss an action; (b) charge a jury; (c) direct a verdict; (d) entertain and determine a motion for judgment on the pleadings. Thompson, Hessian & Fletcher and Karl H. Covell, all of Minneapolis, and Frank Hopkins, of Fairfax, for appellant.

Robert Cowling, of Minneapolis, for respondent.

WILSON, C. J.

This is an action in forcible entry and unlawful detainer.

The plaintiff, through her attorney in fact, on December 1, 1920, made a contract for deed, with defendant, for certain city real estate. The purchase price was $7,300, of which sum $1,000 was pair in cash, $3,000 was paid by assuming a mortgage, and the balance was to be paid in monthly payments of $75 each beginning December 1, 1920. The contract was in the usual form and provided for cancellation on 30 days' notice, if in default.

Plaintiff, on May 7, 1923, caused to be served on defendant a notice of cancellation of the contract which was in the following form, to wit:

‘To William M. Dye:

‘Whereas, William M. Dye entered into a contract, in writing, with Mary M. Clark, bearing date of December 1, 1920, wherein and whereby the said Mary M. Clark agreed, upon certain terms and conditions therein expressed, to convey to the said William M. Dye that certain real estate (description given here), and wherein and whereby said William M. Dye agreed to pay as and for the purchase price of said property the sum of seventy-three hundred ($7,300.00) dollars, of which sum one thousand ($1,000.00) dollars was paid on or before January 1, 1921, and three thousand ($3,000.00) dollars is in the form of a mortgage on the property which said William M. Dye assumed and agreed to pay as part of the said purchase price both principal and interest at the rate of six per cent. per annum, and thirty-three hundred ($3,300.00) dollars to be paid in monthly installments of seventy-five ($75.00) dollars each, commencing December 1, 1920, and thereafter on the first day of each and every month, bearing interest at the rate of six per cent. per annum; and

‘Whereas, the prompt and full performance by said William M. Dye of his said agreement to pay the interest on the mortgage and the said monthly installments as in said contract set forth, was in each case made, in and by such contract, one of the conditions upon which said Mary M. Clark was to convey the said property to the said William M. Dye; and

‘Whereas, default has been made by the said William M. Dye in the conditions of said contract, which default consists in his failure to pay the interest on the said mortgage and failure to pay several installments which are payable monthly according to the conditions set forth in the said contract:

‘Now, therefore, notice is hereby given that the said contract will terminate thirty (30) days after the service of this notice, unless prior thereto you shall comply with the conditions of said contract in which default has been made, and pay the costs of this service of this notice. Payment of the interest on the said mortgage may be made at the office of R. S. Leighton, 848 Security Building, Minneapolis, Minnesota; payment of the installments of the said thirty-three hundred ($3,300.00) dollars, which are due and owing, may be made at the office of the said R. S. Leighton.

‘Dated at Minneapolis, Minnesota, May 7, 1923.

‘[Signed] Robert Cowling.

‘Robert Cowling, Attorney for Mary M. Clark, 846 Security Building, Minneapolis, Minnesota.

The complaint sets forth the usual facts and alleges the service of said notice and says that the defendant failed to comply therewith, and alleges that defendant lost all right by his failure to act within 30 days after service thereof.

The answer admits that plaintiff is the owner of the premises; it admits and alleges the making of the contract for deed; it alleges that by the terms of the contract defendant was to pay the taxes, that he was to have possession and is in possession; that on or about November 1, 1922, he had become in arrears in reference to some payments to be made under and pursuant to the terms of said contract, and pleads:

‘And it was agreed between the parties thereto that thereafter defendant should keep paid up to date said monthly payments of seventy-five and 00/100 ($75.00) dollars, and in the event that said payments were so paid that the balance in arrears should be carried along. That beginning with the 15th day of November, 1922, the said defendant paid said monthly payments to the plaintiff of seventy-five 00/100 ($75.00) dollars per month, and paid the interest on the mortgage, without exception of one payment, up to and including payment on the 21st day of April, 1923, and said last payment was made on the 21st day of April, 1923.’

‘Defendant admits that on the 7th day of May, 1923, a certain notice, purporting to be a notice of cancellation of said contract, was handed to the defendant, but defendant alleges that said notice was insufficient in law and in fact to cancel the said contract, and particularly defendant alleges that by reason of said extension of time for payment the said notice was of no force or effect whatever.’

‘That between the 7th day of May, 1923, and the 7th day of June, 1923, during which said date it is alleged in plaintiff's complaint that the defendant had a right to comply with the terms and conditions of said contract, the plaintiff, through her attorney in fact, waived compliance with the terms of said purported notice of cancellation; that on or about the 31st day of May, 1923, defendant paid the real property taxes on said property in the sum of one hundred thirty-three and 36/100 ($133.36) dollars and at that time notified the plaintiff that he was about to pay said taxes and that he was prepared and would pay the balance due on said contract. That then and there the defendant demanded of the plaintiff an abstract of said property so that he might examine same, and plaintiff at all times refused to furnish said abstract or to tell defendant where he could get said abstract until after the 7th day of June, 1923. That from the 31st day of May, 1923, up to and including the 7th day of June, 1923, the defendant was, at all times, ready, able and willing, and so notified the plaintiff, to pay up the balance due on said contract and interests and costs, upon being given a good marketable title to said real property. That plaintiff refused or neglected to furnish an abstract and made it impossible for defendant to perform his said agreement prior to June 7, 1923.’

The complaint contains this language, to wit:

‘Complainant further states that on the 21st day of April, 1923, there became due and payable from said William M. Dye to this complainant for the agreed price of said premises, pursuant to the said contract, the sum of more than five thousand two hundred and fifty dollars, including a mortgage of three thousand dollars assumed by defendant, which sum is now justly due from said William M. Dye to this complainant for the agreed price of said premises, and that no part of said sum has ever been paid.’

In the amended complaint the above language is superseded by this language, to wit:

‘That on the 7th day of May, 1923, the said William M. Dye was in default and had breached the conditions of the hereinbefore mentioned contract, and that on the 7th day of May, 1923, the said William M. Dye was personally served with notice of cancellation of this contract, a copy of which notice is hereto attached and herewith made a part of this complaint. That this notice was served on said day personally on the said William M. Dye as more particularly appears in the affidavit of service of said notice, a copy of which is hereto attached and herewith made a part of this complaint. That by the terms of said notice, the said defendant was given a period of thirty days from the 7th day of May, within which to comply with the conditions of said contract, and that during the said time, the said defendant totally failed...