Francis v. Brown

• Decision Date: 26 January 1915
• Docket Number: 755
• Parties: FRANCIS v. BROWN ET AL
• Court: Wyoming Supreme Court

145 P. 750

22 Wyo. 528

FRANCIS v. BROWN ET AL

No. 755

Supreme Court of Wyoming

January 26, 1915

ERROR to the District Court, Laramie County; HON. DAVID H. CRAIG Judge.

The material facts are stated in the opinion.

Judgment modified and affirmed.

W. E Mullen, for plaintiff in error.

The suit being based on a written contract, in which the terms of the agreement are stated in clear and unequivocal language the rights and obligations of the parties must be measured thereby. Specific performance was denied for the reason, as indicated in the findings, that there was a right of homestead in some portion of the lands, without evidence to show its exact location. Plaintiffs were awarded judgment upon the theory, apparently, that they had performed their part of the contract entitling them to damages in lieu of performance, and that defendant had failed to perform his part of the contract. This constitutes the fundamental error in the case, for the evidence shows that plaintiffs refused to pay the agreed purchase price. Hence there was no right to specific performance irrespective of the question of homestead. Cotton attempted to hold out and deduct from his part of the first payment a commission on the sale of the land, and the result of the transaction is that only part of the initial payment was made. There was no agreement for a commission to be paid to Cotton by Francis.

The petition does not allege the absence of an adequate remedy at law, a necessary allegation in an action for specific performance, nor does it allege that plaintiffs had paid or offered to pay interest on the mortgage which they had assumed and agreed to pay by the terms of the contract, an allegation also necessary to support an action for specific performance or damages. In such an action the plaintiff must plead all facts which are required to warrant the relief. (Senter v. Davis, 38 Cal. 450). And necessary allegations omitted from the petition cannot be supplied by the reply. (Durban v. Fisk, 16 O. St. 534; School Dist. v. Caldwell, 16 Neb. 68). The allegations in the reply with reference to the homestead are contradictory and meaningless. Since the contract was not enforceable in equity, it could not be used as a basis for the recovery of damages. A sale, disposal or incumbrance of homestead property by the husband without joining the wife is void. (Const., Art. 19, Sec. 1, Homesteads; Comp. Stat. Sec 3662), though it is held that a mortgage is enforceable as to property other than the homestead, where the homestead tract may be eliminated. (Bank v. Bank, (Wyo.) 70 P. 726). And likewise a lease. (Jones v. Losekamp, 114 P. 673). The decided weight of authority in this country is to the effect that under statutory provisions, like those in this State, an executory contract, including homestead lands, not signed by the wife, will not be enforced by specific performance. (Mundy v. Schellaberger, 161 F. 506; Sammon v. Wood, 107 Mich. 506, 65 N.W. 529). And unless specific performance can be decreed of the whole of a contract, the court will not enforce any part of it. (Ross v. R. R. Co., Fed. Cas., No. 12,080; Dorris v. Sullivan, 90 Cal. 279, 27 P. 216; Baldwin v. Fletcher, 48 Mich. 604, 12 N.W. 873; Young &c. Co. v. Brownlee, 34 A. 947; Barbour v. Hickey, 24 L. R. A. 763 and note; Pearsall v. Chapin, 44 Pa. 9.) Equity will not enforce a contract specifically unless it be free from fraud and surprise. (Brown v. Pitcairn, 24 A. 55; Friend v. Lamb, 152 Pa. St. 529, 25 A. 577; McShane v. Hazelhurst, 50 Md. 107; Ratliff v. Vandikes, 89 Va. 307, 15 S.E. 864; 36 Cyc. 605). A broker is not entitled to a commission on a sale to himself, in the absence of a special agreement therefor. (Hammond v. Brookwalter, 12 Ind.App. 177, 39 N.E. 872; Powers v. Black, 159 Pa. St. 153, 28 A. 133; Grant v. Hardy, 33 Wis. 668; Finnerty v. Fitz, 5 Colo. 174; Jansen v. Wiliams, 36 Neb. 869; Ryan v. Kahler, 46 S.W. 71; Foss Inv. Co. v. Ater, 95 P. 1017; Butler v. Agnew, 99 P. 395; Mitchell v. Gifford Co., 67 S.E. 197; Stuart v. Mather, 32 Wis. 344; Tillney v. Wolverton, 46 Minn. 256; Hughes v. Washington, 72 Ill. 84; Tyler v. Sanborn, (Ill.) 4 L. R. A. 218; McNutt v. Dix, (Mich.) 10 L. R. A. 660; Pomeroy's Eq. Juris., Sec. 959; Porter v. Woodruff, 36 N. J. Eq. 179; Mechem on Agency, Sec. 455; 45 L. R. A. 33 and note; 154 Pa. 326; 59 Ill.App. 161). An agent authorized to sell at a certain price cannot sell to himself. (Anderson v. Bank, 5 S.D. 83, 64 N.W. 114). Nor can one be principal on one side and broker on the other. (Hogle v. Meyering, 161 Mich. 485, 126 N.W. 1063; Fillmore v. R. R. Co., 2 Wyo. 94).

The court very properly permitted evidence to explain the circumstances of the alleged first payment, although the receipt of the payment is acknowledged in the contract. (Soule v. Soule, 157 Mass. 451, 32 N.E. 663; Woolen v. Hillen, 9 Gill, (Md.) 185, 52 Am. Dec. 690; 17 Cyc. 633; Mulligan v. Smith, 57 P. 733; 1 Greenleaf's Ev. 305; Crow v. Colberth, 24 N.W. 479; Taggart v. Stanberry, Fed. Cas. No. 13,724, 2 McLain, 543; Halwell v. Fitts, 20 Ga. 723; Harter v. Greenleaf, 65 Me. 405; Elysville Mfg. Co. v. O'Kisko Co., 1 Md. Ch. 392; Parker v. Foy, 43 Miss. 260, 55 Am. Dec. 484; Bolles v. Beach, 22 N. J. L. 680, 53 Am. Dec. 263; Hewet v. Schofield, 9 N. J. Eq. 492; Smith v. Arthur, 110 N.C. 400, 15 S.E. 197; Thayer v. Viles, 23 Vt. 494; Long v. Freeman, 114 N.C. 567; Lazell v. Lazell, 12 Vt. 443, 36 Am. Dec. 352; 17 Cyc. 629 and note). A check is not an assignment of funds unless accepted or certified. (Comp. Stat., Sec. 3347). Nor is it payment unless taken under an express agreement that it is so accepted. And this rule applies to contemporaneous as well as pre-existing debts. (30 Cyc. 1207-1209; Thompson v. Bank, 82 N.Y. 1; Barnett v. Smith, 30 N.H. 256, 64 Am. Dec. 290; Kerymen v. Newby, 14 Kan. 164; Selby v. McCullough, 26 Mo.App. 66; People v. Baker, 20 Wend. 602; Hatcher v. Comer, 75 Ga. 728; De Paris v. Driesbach, 20 P. 28; 132 P. 16; 35 L. R. A. (N. S.) 26). Where the check is returned to the debtor and maker and used by him, the debt remains unpaid. (Good v. Singleton, 39 Minn. 340). Unless a check is paid it is not payment of the debt. It is simply an order for payment until it is honored and paid. (Born v. Bank, 7 L. R. A. 442; Bank v. R. R. Co., 9 L. R. A. 263; Dille v. White, 10 L. R. A. (N. S.) 521; Cox v. Hays, 18 Ind.App. 223, 47 N.E. 844; Ins. Co. v. Globe, 51 Neb. 8, 70 N.W. 503; Bank v. McConnell, 14 L. R. A. (N. S.) 616; Tiedeman on Com. Pap., Sec. 456).

There is no proper ground under the evidence for awarding judgment for the amount of the Cotton check, or the interest thereon, for the defendant, Francis, never received it. To be effective as such, a tender must be sufficient in amount to cover the sum due. (Sav. Ass'n. v. Bank, 12 Wyo. 315, 75 P. 448). The allowance of interest to Delahoyde was error. If he left his money at the bank it was not by direction of the defendant Francis. The court did not find that the balance of the money was left there by Cotton or Brown upon any theory of a "standing tender". The deal was not closed, because there was no proper tender made of the whole amount. However, the money left at the bank by Delahoyde was in the form of a check, and it does not appear that it was certified. If he left it at the bank there was nothing to show that it was good.

Findings of fact unsupported by evidence or a judgment unsupported by findings of fact constitute proper ground for new trial. (Rubel v. Willey, 5 Wyo. 427; Bank v. Anderson, 7 Wyo. 441). The defendant was entitled to special findings of fact on the issue whether the plaintiffs had paid or offered to pay the accrued interest on the mortgage, which had been assumed by them under the terms of the contract. That was a material question under the pleadings. The plaintiffs were joint purchasers under the contract and jointly responsible for the performance of its obligations. (Smith v. Krall, (Ida.) 75 P. 263; Pomeroy's Eq. Juris. (3rd Ed.) Sec. 1407). The facts in the case do not warrant either specific performance or damages. (Pomeroy's Eq. Juris. (3rd Ed.) Sec. 1405).

H. Donzelmann, for defendants in error.

It is not contended on behalf of defendants in error that a homestead can be sold or alienated by a husband without the wife's signature, but it is contended that where a husband contracts to sell a large tract of land in excess of the number of acres allowed as a homestead, the contract is good as to all of the land outside the homestead tract. The word "tender", when used in connection with mutual and concurrent promises, means only a readiness and willingness, accompanied with the ability, on the part of one of the parties, to do the acts required to be performed by him, provided that the other will concurrently do the acts which he is required to do, and a notice by the former to the latter of such readiness. (Smith v. Lewis, 26 Conn. 110; Raudabaugh v. Hart, 61 O. St. 73, 55 N.E. 214; Aborn v. Mason, 1 Fed. Cas. 37; Adams v. Clark, 63 Mass. 215; Cook v. Doggett, 84 Mass. 439; Guilford v. Mason, 48 A. 386; Manistee Lumber Co. v. Bank, 143 Ill. 490; Shouse v. Doane, 39 Fla. 95, 21 So. 807; 8 Words & Phrases, p. 6911; Clark v. Weis, 87 Ill. 438).

Under the practice of this State, when the court has obtained jurisdiction of a case for one purpose, it may and should retain it generally for any proper relief. (Swift v Dewey, 20 Neb. 107). When a vendor disables himself from making conveyance damages may be decreed. As to the rule of damages, see: Dustin v. Newcomer, 8 Ohio 49; Gibbs v. Champion, 3 Ohio 337. In a suit for specific performance of a contract for the sale of land the vendee is entitled to rents and profits for the time that he has been kept out of possession by the...