Fried v. Lonski
| Decision Date | 12 May 1922 |
| Citation | 188 N.W. 582,48 N.D. 1023 |
| Court | North Dakota Supreme Court |
From a judgment of the District court of Stutsman county, Coffey J., defendant appeals.
Reversed.
Judgment reversed, and case dismissed.
Geo. W Thorp, Harry E. Rittgers, for appellant.
"Where the defense is available under a general denial, it seems that timely objection should be made to evidence of the oral contract, on the ground that it is incompetent under the statute of frauds." Erickson v. Wiper, 33 N.D 193.
Under the provisions of our code, the court is authorized to and should allow amendments such as this to conform with the proof and in furtherance of justice. French v. Co., 29 N.D. 426; Southern Com. Co. v. Wier, (S.D.) 148 N.W. 597.
"The courts are practically unanimous that the mere payment of a portion of the purchase money, unaccompanied by any other act, does not amount to part performance of an oral contract, sufficient to take the case out of the statute of frauds." 25 R. C. L. 267, and long list of cases cited from all the federal courts from nearly every state. Merchants State Bank of Fargo v Ruettell, 12 N.D. 519; Heran v. Elmore (S.D.) 157 N.W. 820; Story's Eq. Vol. 2, 760.
"One who makes a contract to sell property of which he had no title, nor the certain means of procuring title, present no facts upon which damages to him may be predicated, if the purchaser withdraws from the contract." 24 N.D. 268.
A court of equity will not decree specific performance and aid the plaintiff in a mere speculation where the plaintiff refuses to publish and expose his title. Brugman v. Charlson (N.D.) 171 N.W. 882, 884; 25 R. C. L. 246, § 49 and cases cited.
C. S. Buck, for respondent.
"Where a complaint alleges the contract generally without stating whether it was in writing or not, the statute of frauds is not available as a defense, unless specially pleaded." Abraham v. Durward, 180 N.W. 783.
"A contract to sell or a sale of any goods of the value of five hundred dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods so contracted to be sold or sold, and actually receive the same or unless some note or memorandum in writing of the contract of sale be signed by the party to be charged or his agent in that behalf." (Session Laws, 1917, chap. 202, p. 4); Browne, (Browne, St. of Frauds, 5th ed. § 135) says:
"As the statute of frauds affects only the remedy upon the contract, giving the party sought to be charged upon it a defense to an action for that purpose, if the requirements of the statute be not fulfilled, it is obvious that he may waive such protection, or rather that, except as he undertakes to avail himself of such protection, the contract is perfectly good against him."
This principle has been recognized and enforced by this court. Erickson v. Wiper, 33 N.D. 193, 203, 204, 157 N.W. 592; Groff v. Cook, 34 N.D. 136, 157 N.W. 973.
This is an action brought by a vendor to compel the specific performance of a certain alleged executory contract for the sale of land. The trial court made findings and conclusions in favor of the plaintiff, and the defendant has appealed from the judgment entered thereon and demanded a trial anew in this court.
In his complaint the plaintiff alleges:
The prayer for judgment is:
"That the defendant herein be required to specifically perform the contract entered into between herself and the plaintiff herein on the 20th day of October, 1920, and accept the deed of conveyance for said lot 151 in Jones & Vennum's addition to the city of Jamestown, N.D., and pay to the plaintiff the sum of $ 1,100 with interest thereon at the rate of 6 per cent. per annum from the 28th day of October, 1920, and for such other and further relief as shall be equitable, and for his costs and disbursements herein."
To this complaint the defendant interposed a general denial, and the case came on for trial upon the issues thus framed. At the commencement of the trial the defendant's counsel objected to the introduction of any evidence on the ground that the complaint failed to state a cause of action, in this, that it failed to allege that the contract sued upon was in writing. And during the examination of witnesses defendant's counsel at the very first opportunity objected to the introduction of any and all evidence offered relating to oral negotiations or arrangements between the plaintiff and the defendant on the ground that the statute required all contracts like the one sought to be enforced in this suit to be in writing; and that the prior oral negotiations would be merged in the written contract. These objections were all overruled. At the conclusion of plaintiff's case, the defendant moved for judgment on the ground that the plaintiff had failed to establish a contract; that there was no contract in writing as required by law; that under the statute all contracts relating to the sale of land were invalid unless in writing; that the payment relied upon as part performance was not part performance; that the evidence adduced showed that the plaintiff was not the owner of the premises; and that no deed, executed by the plaintiff Fried, had been tendered to the defendant. This motion was denied.
The defendant introduced no evidence, so the only evidence adduced was that offered by the plaintiff. The evidence so introduced, shows that the plaintiff is a real estate dealer in the city of Jamestown. The defendant, who is a widow, came to see the plaintiff some days prior to October 20, 1920, with respect to the purchase of a house. He showed her several houses at various prices. Among others was one referred to as the Anderson house; and, according to the testimony of the plaintiff, the defendant stated that she would take this house at $ 2,500. A day or two thereafter a daughter of the defendant called plaintiff on the telephone and stated that her mother had decided that she would rather have another house which the plaintiff had shown her, known as the Dancer house, which house the plaintiff had offered to the defendant for $ 2,800. In said telephone conversation the daughter stated that the defendant would pay $ 1,200 in cash and assume a $ 1,600 mortgage against the property. Thereupon the plaintiff sent his clerk, one Gasal, out to the farm where the defendant was living and obtained a check for $ 100 signed by one of the defendant's sons as payment on the Dancer house. The plaintiff did not own the property at any time. It had merely been listed with him by the owner, under an arrangement whereby the plaintiff was to act as a broker in making sale, and was to receive as compensation all he received over $ 2,500. Shortly after Gasal returned with the $ 100 check from the defendant, Gasal and Fried went to see Dancer and Dancer and his wife executed a deed to Gasal for the property involved in this suit. It was understood that this deed was to be used in transferring the title to Lonski, and that the owner, Dancer, was not to be paid until Fried had received the money from Mrs. Lonski. There is no contention that Fried or Gasal ever paid Dancer for the property, or that they agreed to pay him otherwise than out of the moneys received from Mrs. Lonski. Some two or three days after the deed had been executed by Dancer and his wife to Gasal, Fried received another telephone call from one of defendant's sons to the effect that the defendant had changed her mind and did not want to purchase the property at all, and some days later the defendant, Mrs Lonski, came to plaintiff's office, and stated that she was unable to raise the money required and desired to be relieved from the contract.
The appellant contends that the evidence in this case does not establish a valid contract, that the alleged oral contract referred to in the evidence adduced by the plaintiff was invalid under the statute of frauds, and that there was not such part performance as to render it enforceable. The respondent, on the other hand, contends that the defendant is in no position to assert the invalidity of the contract for the reason that the statute of frauds was not specially pleaded. The statute involved reads:
"No agreement for the sale of real property, or of an interest therein, is valid unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged, or his agent thereunto...
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