Foster County Implement Co. v. Smith

• Decision Date: 05 March 1908
• Citation: 115 N.W. 663,17 N.D. 178
• Court: North Dakota Supreme Court

115 N.W. 663

17 N.D. 178

FOSTER IMPLEMENT COMPANY v. E. DELAFIELD SMITH

Supreme Court of North Dakota

March 5, 1908

Appeal from District Court, Foster County; Burke, J.

Action by the Foster County Implement Company against E. Delafield Smith. Judgment for plaintiff, and defendant appeals.

Affirmed.

Maddux & Rinker, for appellant.

T. F McCue and Turner & Wright, for respondent.

OPINION

FISK J.

This is an appeal from a judgment of the district court of Foster county in plaintiff's favor. The principal errors assigned relate to the sufficiency of the complaint, which is as follows: "Plaintiff, for its amended complaint herein complains and alleges: (1) The plaintiff is and during all of the times mentioned in this complaint has been a corporation duly organized and existing under the laws of this state. (2) That on or about the 24th day of September 1906, the plaintiff and the defendant entered into a written contract by the terms of which the plaintiff agreed to buy, and the defendant agreed to sell to this plaintiff, the following described real property situated in the county of Foster and state of North Dakota, to-wit: The east one-half (E. 1/2), section three (3), the northwest quarter (N.W. I/4) of section eleven (11), and the southwest quarter (S.W. 1/4) of section two (2), all in township one hundred forty-seven (147), north of range sixty-four (64), west of the fifth principal meridian, containing 640 acres, according to United States survey thereof. That by the terms of said contract the price agreed upon for said land was $ 16.50 per acre, to be paid as follows: Cash on delivery of warranty deed $ 2,500. That the plaintiff was to assume the mortgage indebtedness at said time standing against said land, and to pay the balance of the purchase price in two equal payments, to be due, respectively, on November 1, 1907, and November 1, 1908, with interest at the rate of 7 per cent. per annum payable annually. (3) That at the time of entering into said contract this plaintiff paid to the defendant the sum of $ 100 as part of the purchase price thereof, which said sum the defendant received, and has ever since retained. (4) That thereafter and within a reasonable time this plaintiff offered to the defendant to perform the said contract on its part and to pay to the defendant the balance of the initial payment, $ 2,500, and to execute the notes and mortgages for the deferred payments as provided in said contract, and demanded of the defendant the performance of said contract on his part, and that he convey said premises to this plaintiff, subject to the incumbrance as in said contract provided. That defendant at said time refused, and has at all times since failed and refused, to perform the condition of said contract on his part to be performed, although the plaintiff has at all times been, and now is, ready, able, and willing to perform the conditions of said contract on its part to be performed. (5) That said property was at the time of the breach of said contract, as herein alleged, and now is, of the reasonable value of $ 25 per acre, or $ 16,000, and plaintiff has been damaged by reason of the defendant's failure to perform in the sum of $ 5,540. Wherefore plaintiff prays judgment against the defendant in the sum of $ 5,540, with interest thereon at the rate of 7 per cent. from September 24, 1906, and for the costs and disbursements of this action."

To this complaint defendant demurred upon the ground that the same fails to state facts sufficient to constitute a cause of action. Thereafter the following written stipulation was entered into between counsel for the respective parties, to wit: "It is hereby stipulated by and between the attorneys for the above-entitled parties that the demurrer served shall be submitted to the court at Carrington on the 11th day of March, and that, if said demurrer shall be overruled, the defendant shall have two days to answer, and, if the demurrer is sustained, the plaintiff shall have two days in which to serve an amended complaint. It is further stipulated that said case shall be placed upon the calendar for the special term of said court commencing on the 11th day of March. Dated this 5th day of February, 1907. T. F. McCue, Attorney for plaintiff. Maddux & Rinker, Attorneys for Defendant." On March 11th said demurrer was argued and submitted, and an order made overruling the same and permitting defendant to answer within three days on condition that the case be tried at the special term of said court commencing on said date. On March 19th the case, being on the calendar, was reached for trial, and the defendant having failed or declined to answer the complaint, and not appearing in court in person or by counsel, a jury was waived by plaintiff, and proof was introduced in support of the allegations of the complaint, and judgment ordered as prayed for; findings of fact having been expressly waived by plaintiff's counsel. Pursuant to such order, the judgment complained of was entered.

The only assignments of error which are discussed in appellant's brief relate to the sufficiency of the complaint to state facts constituting a cause of action hence the other assignments are deemed to have been abandoned under rule 14 of this court (91 N.W. viii), and will not be noticed. Does the complaint allege facts sufficient to constitute a cause of action? Its sufficiency is challenged by appellant's counsel for the reasons, as stated by them, that it fails to allege: (1) That defendant had an interest or equity in the property sold. (2) That the defendant represented that he had an interest in said property, title, or possession, or expectation, or possibility, or could secure title, and that plaintiff believed and relied upon such representations. (3) It fails to allege fraud, deceit, or mistake on the part of defendant. (4) It fails to allege that defendant is not in position to convey good title. (5) It does not allege a tender by plaintiff of the $ 2,500 cash to be paid on delivery of the deed. (6) It fails to allege the drawing and signing the notes and mortgages with the requirements of a sealed instrument, and the tender thereof to the defendant. (7) It fails to allege the date of offer to perform to show a reasonable time for defendant to perfect title and present deed. (8) No specific date for payment of the $ 2,500 or for delivery of the deed is alleged. (9) It alleges contract made September 12, 1906, and action begun October 29 1906, with no date for payment of $ 2,500 or delivery of deed, and affirmatively shows action premature. (10) It affirmatively shows that $ 2,500 was to be paid on tender of deed, and at no other time. (11) The complaint also fails to allege whether mortgages were to be on personal property, or on real, or both, and fails to describe the...