Dietz v. Rabe
| Decision Date | 21 December 1922 |
| Docket Number | 4931. |
| Parties | DIETZ v. RABE. |
| Court | Montana Supreme Court |
Appeal from District Court, Fallon County; Stanley E. Felt, Judge.
Action by Frank Dietz against Edward Rabe. From judgment for plaintiff and from an order denying defendant a new trial defendant appeals. Modified and affirmed.
Booth & McLemore, of Baker, for appellant.
D. R Young, of Baker, for respondent.
This action was brought to recover the sum of $500 as part of the purchase price of 320 acres of land situated in Fallon county. At the time of the making of the bargain, there existed upon the land two mortgages aggregating $1,000. According to the complaint, the agreement between the plaintiff and the defendant was that, if the former would pay $500 to defendant as an initial payment, he could have as much time as he needed to complete the purchase at the rate of $8 per acre. This the answer denies, and it alleges that the $500 was paid to defendant upon the understanding that the plaintiff would have an option to purchase the land for one year at $8 per acre, his commission to be all that he could obtain over that price, and, if he failed to make a sale within the time and under the terms stated, the deposit of $500 should be forfeited; that during the life of the option the plaintiff should have possession of the land with the right to raise a crop thereon and to take the proceeds that the plaintiff should pay the interest on the mortgages during the year and be credited with the amount so paid in case he made the sale; that the plaintiff took possession of the land and raised a crop thereon, the proceeds of which amounted to more than the $500 paid by him; that he failed to sell the land, failed to pay the interest on the mortgages failed to keep his contract to purchase, and was unable to sell the land, and requested the defendant to do so; that thereafter defendant sold the land; and that at all times he was ready, able, and willing to perform his undertaking.
The case upon the evidence was submitted to a jury, which made findings to the effect that the verbal contract was not an option; that it did not provide for a forfeiture of the $500; that the defendant, and not the plaintiff, failed to comply with his agree ment; that at the time it was rescinded it was not the intention of the parties that the $500 payment should be forfeited; that the reasonable value of the use of the land during the year 1915 was $75; and that the value of the improvements placed thereon by plaintiff and the taxes and interest paid by him during the time it was occupied by him was the sum of $148.50. Upon the findings and a general verdict in plaintiff's favor judgment was rendered and entered. Defendant appeals from the judgment and from an order denying him a new trial.
The defendant's argument is that rescission is effected: (1) By an agreement which implies reciprocal restoration; (2) when imposed by one party for the default of the other; and contends (3) that the case falls within the latter class. Plaintiff's contention is that, notwithstanding the default, he is entitled to be placed in statu quo, under section 6039, Revised Codes of 1907, because by mutual agreement, he restored the land to defendant.
The agreement was entirely oral, and its character was the disputed question for the jury to decide. They found that there was a mutual agreement to rescind. The defendant asks nothing by reason of the default, but claims the money upon the ground that it was forfeited to him. Of the eight alleged errors, only four need be noticed.
The defendant predicates error upon the refusal of the court to give his proposed instructions numbered 3 and 4. The court's instructions of like number cover the same subject-matter as did the refused instructions. They, having been given without objection, became the law of the case in respect of the matter with which they purport to deal. Daniels v. Granite-Bimetallic Co., 56 Mont. 284, 184 P. 836. In them the court told the jury that, where a contract between two parties is rescinded or abandoned by mutual consent without any specification as to the return of the money paid as a consideration, each party is nevertheless bound to return the consideration so received; that rescission is determined by the acts of the parties and the circumstances attending their relations to each other.
The next error assigned challenges the sufficiency of the evidence and leads us to look at the relative position of the two parties to see if the evidence presented a dispute. The plaintiff and the defendant were both foreign-born, and while their words were not well chosen, their intentions are susceptible of being very well understood. The plaintiff took the stand in his own behalf and testified to the following: About the middle of October, 1914, he went into the saloon of the defendant at Plevna, Mont., and asked him if he would sell him the land above referred to; that defendant answered "Yes," for $8 per acre, and adding that he owed $1,000 which was secured by two mortgages thereon; that, if the plaintiff would pay him $500 in cash and assume the mortgages, he would give him all the time he wanted to pay the balance, at 6 per cent. per annum interest; that he then stated, "If I can get that money, I take it, but still you got to give me a clear deed and abstract and you can take a mortgage back on the balance of the money, or I give you a note and let my two boys sign it;" that the defendant replied, "Anything suits me so I get the $500; I need it in my business;" that he paid the money to defendant and obtained from him a receipt reading as follows: He also testified that he had asked defendant about November 13 for a deed and an abstract "and to make a mortgage out, or note, one or the other"; that ...
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