Erickson v. Wiper

Decision Date06 March 1916
Docket Number1915
CourtNorth Dakota Supreme Court

From a judgment of the District Court of Ward County, Leighton, J defendant appeals.


Greenleaf Bradford, & Nash, for appellant.

A contract for the sale of real property or an interest therein is invalid unless the same or some note or memorandum thereof is in writing and subscribed by the party to be charged, or by his agent. Rev. Codes 1905, § 5332.

In the absence of fraud, mistake, or ambiguity, the accepted rule is that parol evidence is not admissible to vary or change the terms of a written instrument. Greenl. Ev. 15th ed. § 275.

E. R Sinkler, for respondent.

The court in every stage of an action may disregard any error or defect in the pleadings, which shall not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect. Comp. Laws 1913, § 7485.

"Where an oral promise relating to the transfer of real property has been performed, the contract of which it is a part is no longer within the statute of frauds by reason of such promise, and accordingly an action will lie for a breach thereof. This is true of agreements to lease and to sell real property, or some interest therein." 22 Cyc. 293, and cases cited.

"If an agreement which was unenforceable because within the statute of frauds has been performed, an action will ordinarily lie for a refusal to perform a promise given in consideration thereof, or in connection therewith." 22 Cyc. 293, 294, and cases cited.

The consideration mentioned in the deed may be inquired into, or explained by parol. It, of itself, is not conclusive of the fact. Martin v. White, 115 Ga. 866, 42 S.E. 279; Velton v. Carmack, 20 L.R.A. 101, note; Shehy v Cunningham, 25 L.R.A.(N.S.) 1194, and note, 81 Ohio St. 289, 90 N.E. 805; Fowlkes v. Lea, 68 L.R.A. 925, and note, 84 Miss. 509, 36 So. 1036, 2 Ann. Cas. 466.

Where there is substantial conflict in the evidence, a new trial will not be granted. Becker v. Duncan, 8 N.D. 600, 80 N.W. 762; Muri v. White, 8 N.D. 58, 76 N.W. 503.

CHRISTIANSON, J. BURKE, J., GOSS, J., dissenting.



On July 22, 1911, and for several years prior thereto, the plaintiff was living with her husband, John Erickson, upon the southeast quarter of section 23, township 161, range 90, in Burke county. This land adjoined the town site of Coteau. John Erickson was the record owner thereof, but it is undisputed that it was occupied by him and his wife (the plaintiff), and their children as their home, and that the plaintiff had a homestead interest therein.

It is also undisputed that on July 22, 1911, John Erickson and the plaintiff herein, as his wife, executed and delivered to the defendant, Wiper, a warranty deed for this tract of land, subject to the encumbrances of record against the same. The controversy involved in this lawsuit relates to the circumstances and conditions under which the transfer was made, and the amount to be paid by Wiper, and the manner of such payment. Wiper testifies that on the 21st of July, 1911, he went to Erickson's farm to look after certain interests, and he gives the following version of a conversation had at that time: "They were very anxious to go to Canada. Mrs. Erickson was very anxious to have John go to Canada to get some land, because he was drinking so hard that she thought if he got away from old associates he might accomplish something in making a home for them. They wanted to sell me this particular piece of land, saying they owed so much on it, and there was a second crop failure staring them in the face, and unless they could get some money from me they did not know how they could get to Canada. They expected any time there would be a suit started, foreclosures and judgments rendered so they would be unable to get anything, and wanted me to buy the land, and they wanted $ 5,000 for the land to start on. I told them I could not think of giving $ 5,000 for the land. I would not consider it at all. Finally they asked me if I would consider it at $ 4,500. I said 'No,' I would be willing to take the land at $ 4,000, and give them the privilege of redeeming the land within a reasonable time at the same price at any time before the 1st of April, for at that time I would have to make some arrangements for the cropping of it. They decided to accept that offer. I told them they could think it over, and if they felt the same way to-morrow, Saturday, or any later date, they might come in and we would deal along those lines. . . ."

Wiper's testimony regarding this conversation was corroborated by his chauffeur, Heath; although Heath says that Mrs. Erickson while present took no part in the conversation, but that this was carried on by Wiper and Erickson. Heath further testified that he and Wiper first came to Erickson's farm, and found that Erickson was in town, and that they thereupon drove to town and took Erickson with them in the automobile, and went to examine three different tracts of land that Erickson was cropping, in which Wiper or his bank were interested; that during all of this time no talk was had about the sale of the land by Erickson to Wiper, but that this was first mentioned when they came to the Erickson farm.

Mrs. Erickson admits that Wiper came to her home on the day in question, and that some talk was had, but she denies absolutely that any talk was had outlining terms of sale as testified to by Wiper. She claims that the terms of sale were first discussed in detail and agreed upon, on the following day (July 22, 1911), when she and her husband went to defendant's bank, made the sale, and executed and delivered the deed.

She testified in part as follows:

Q. When you were in on the 22d of July, where did you go to?

A. I went in to the room in the back part of the bank.

Q. Who was with you?

A. Nobody else, only Erickson and Wiper and me.

Q. Did you have any talk about the land at that time?

A. Yes.

Q. What talk did you have with him there in the bank at that time about the land?

A. John wanted to sell the land because he wanted to go to Canada, and I says I have signed enough, but if you want to go to Canada I will sign the land if there is anything left on the land, and Mr. Wiper said he would figure it, he said there was $ 2,800, mortgage, and there was no more talk, and he wrote something on a piece of paper, but no more talking until I said I want to have something to say in that land, for that homestead belongs to me just as much as to him, and I have got the children to support, and if you go to Canada I cannot stay here with the children on nothing.

Q. What did he say?

A. He said you come in when the papers come back, and I will pay you all there is over the mortgage, and the land is $ 5,000, and the mortgage was $ 2,800.

Q. Who was present at the time that he told you this? A. No one in there only Erickson, me, and Wiper.

Q. Do you know whether Wiper--where this paper was at the time you were in there?

A. Yes, that paper, you know they have a desk and that is kind of a shelf on both sides, and he pulled the paper out of there, and began to write something when we were talking, and he talked a little. Well, you understand now before I sign it I want to have read over what--he said $ 2,800 mortgage, and I was supposed to have the rest, and the land is $ 5,000.

Q. Did he agree to that?

A. Yes, he agreed to that.

Q. And then after he agreed to that did you sign the paper?

A. I did not sign any more than the deed.

Q. You signed the deed?

A. Yes.

. . . .

Q. Was Wiper going to give him money to go to Canada?

A. Yes.

Q. How do you know that?

A. He told me and I heard it.

Q. Who told you?

A. My husband said to Wiper, all I want is $ 150 and the rest goes to my wife.

Q. I thought you said it was all to go to you?

A. He wanted $ 150 at this time.

Q. And the rest was to go to you?

A. Yes.

Wiper admits that John Erickson and his wife (the plaintiff), came to his bank on the day in question, and executed and delivered the deed. He also admits that some further talk was had regarding the terms of the deal, but denies flatly that he agreed to pay anything to the plaintiff.

Wiper testified in part:

I asked Mr. and Mrs. Erickson when they came in if they had anyone in town that they would care to call in, in the bank with them as a witness to that transaction, and they thought it was not necessary. This was just before dinner. I says you better have somebody come in with you, Mrs. Erickson, you must know somebody in town and they decided Mr. Dahlquist was an old friend of the family, and they would ask Mr. Dahlquist to come in, and I said it is about dinner time and we have not had dinner, you go to dinner and I will go to dinner, and after dinner you come in and bring in Mr. Dahlquist or whoever you want in, in the bank. I should think about 2 o'clock in the afternoon we three met at the bank. We had not yet taken the deed, we had not yet drawn the deed. I asked him if Mr. Dahlquist was coming in, and they said they had been over to his house, but he was out in the country to his farm, and I think Mr. Erickson said we don't think it is necessary anyhow. We have done lots of business with you and we always got along all right, and I finally said all right, and then we entered into the talk about who was to have this money, whatever money might be had, might be due them if any, and it was agreed that this seed lien, these seed lien notes that I would have it to crop if any, and convert the proceeds into money, together with the $ 4,000, that I would be allowing them for the land, would be the whole amount of their credit from it, all of...

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