Dosch v. Andrus
| Decision Date | 24 June 1910 |
| Docket Number | 16,654 - (89) |
| Citation | 126 N.W. 1071,111 Minn. 287 |
| Parties | E. O. DOSCH and Others v. EARLE F. ANDRUS and Another |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county by E. O. Dosch and five others against Earle F. Andrus and E. M. Zuel to recover $1,000, earnest money paid upon an application for the purchase of certain land and $100 for personal expenses incurred in connection therewith. The defendants in their answer alleged a waiver of the defects mentioned in the opinion and an agreement to take the land notwithstanding the reservation, and interposed a counterclaim for $2,900, the amount of their lost profits. The case was tried before Bunn J., who denied motions for instructed verdicts. The jury returned a verdict in favor of defendants. From an order denying plaintiffs' motion for judgment notwithstanding the verdict or for a new trial, they appealed. Reversed and new trial ordered.
Contract to sell land -- defect in title.
Defendants by written contract agreed to convey land to plaintiffs, who paid defendants $1,000 earnest money. On examination of title it appeared a right of way had been reserved across the land by a railway company, which had also, in conveying the land done so by two deeds executed upon the same day to the same grantee, and each for an undivided half. A written demand was made for a quitclaim or other deed from the railway company.
Reservation.
The written contract made no mention of the reservation, and defendants were bound to give plaintiff a good title.
Refusal to perform.
The reservation of the right of way constituted a substantial defect, which, if not cured or waived, justified plaintiffs in refusing to perform.
Defect in title -- evidence.
The evidence was not sufficient to justify a finding that the curative deed demanded was not desired to remedy the defect caused by reservation, but only to remove a doubt as to the sufficiency of the two prior deeds of the railway company to convey the entire property. It was error, therefore, to permit the jury to so limit the scope of the demand, and find a waiver as to the reservation.
Damages for breach.
If a party to an executory contract renounces it, tender of performance by the other party is generally unnecessary; but, in order that such other may recover damages for a breach, he must show ability to perform on his part.
Harold Harris and Masters, Graves & Masters, for appellants.
On August 16, 1907, the parties entered into a contract by which plaintiffs agreed to purchase and defendants to sell the south half of a section of land in Bayfield county, Wisconsin. Simultaneously with the execution of the contract, plaintiffs paid defendants $1,000 on account. The contract contained a provision that if, on examination, the title proved defective, defendants should only be liable for the return of the amount paid or obligation given. It appeared upon examination the Chicago, St. Paul, Minneapolis & Omaha Railway Company acquired title to the land by a patent from the state of Wisconsin, and by mesne conveyances title had passed to Long & O'Toole. The railway company had conveyed the tract by two deeds, both executed on the same day to the same grantee, and each for an undivided one-half of the tract. In the second a strip one hundred feet in width was reserved for right of way. One of the intermediate grantors reserved the mineral rights. The abstract was, at the direction of plaintiffs, finally submitted to Higbee & Higbee, attorneys, of La Crosse, Wisconsin, who rendered the following opinion:
On October 12 defendant Andrus wrote to Higbee & Higbee, stating that he had complied with all of their requirements, with the exception of the deed from the railway company, and suggesting a waiver of that requirement, but saying further: "If you still deem it a matter of vital importance, we will endeavor to obtain this quitclaim from the Omaha, and wish at the same time that you would write us your reasons for making this request." On October 15 Higbee & Higbee wrote defendant Andrus, on behalf of the plaintiffs, stating that plaintiffs had found the lands misrepresented to them, "and for this reason, and the further reason that you have failed to perfect the title to said lands, they withdrew their application for the purchase thereof, and demand that you repay them the sum of $1,000 which has been paid upon said contract." Andrus replied, denying the claims of plaintiffs as recited in the letter of Higbee & Higbee, excepting the deed already referred to. On November 14 E. C. Higbee wrote to defendant Andrus, informing him of instructions received to commence suit unless settlement was made. Andrus replied again, reiterating his position, and nothing further seems to have been done until some time later, when the following communications were exchanged:
Although denied by plaintiffs, there was some evidence that before entering into the contract they were informed as to the...
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