Hawkins v. Stoffers

• Decision Date: 09 April 1929
• Docket Number: 1535
• Citation: 276 P. 452,40 Wyo. 226
• Parties: HAWKINS v. STOFFERS, ET AL. [*]
• Court: Wyoming Supreme Court

276 P. 452

40 Wyo. 226

HAWKINS v. STOFFERS, ET AL. ^[*]

No. 1535

Supreme Court of Wyoming

April 9, 1929

Rehearing Denied 40 Wyo. 226 at 245.

APPEAL from District Court, Lincoln County; JOHN R. ARNOLD, Judge.

Action by Oswald T. Hawkins, against George E. Stoffers and another. The material facts are stated in the opinion. Judgment for plaintiff, and defendants appeal.

Reversed and Remanded.

For appellants there was a brief by Clarence Baird and Morris &amp Callister, of Salt Lake City, and N.W. Reynolds, of Kemmerer and oral argument by Mr. Baird and Mr. Callister.

The court erred in overruling appellants demurrer to the second amended petition; demurrers had been sustained to the original and first amended petition, neither of which differed in a substantial way from the second amended petition. Breach of dependent covenant, not going to whole consideration, and subordinate to main purpose, will not support action for breach of entire contract. 13 C. J. 664; Joyce v. Shafer, (Cal.) 32 P. 32; Garberina v. Roberts, 41 P. 857; Morgan v. Tucker, 61 A. 863; 28 C. J. 1019. The evidence was insufficient to sustain the petition; respondent was obliged to resist the demands of the receiver; burden of proof was upon plaintiff to show that he relinquished to a paramount title in order to bind the guarantors. 7 R. C. L. 1197; 15 C. J. 1310-1311; 1 Tiffany on Real Property 126; Bank v. Wheatley, (Nebr.) 139 N.W. 673; Williamson v. Davey, (Tex.) 114 S.W. 195. A corporation may continue after forfeiture of its charter for purpose of liquidating its affairs. Comp. Laws Utah, 1927, Sec. 870; Henroid v. Co., (Utah) 173 P. 134. Plaintiff failed to protect title to the Idaho land that was to be exchanged under the contract, and is therefore not entitled to recover partial payments made. Spencer on Suretyship, 209, 216, 214; 28 C. J. 935, 994-995; 12 R. C. L. 1083; Co. v. Tenney, (Ore.) 244 P. 84; Co. v. Romney, (Utah) 126 P. 325; Fitzmaurice v. Bank, (Ia.) 154 N.W. 895. There having been a material alteration from the original mode of performance contemplated in the contract, the grantors are released; the judgment should be reversed.

For respondent, there was a brief by Frazer and Wallis, of Salt Lake City, Utah, and H. R. Christmas, of Kemmerer, and oral argument by Mr. Frazer.

Plaintiff was entitled to possession; his eviction by the receiver was a breach of the contract entitling plaintiff to treat it as rescinded by the Wasatch Company, and to sue for damages. Davidson v. Dingeldine, (Ill.) 129 N.E. 79; Lackovic v. Campbell, (Mich.) 195 N.W. 798; Corning v. Loomis, (Mich.) 69 N.W. 85; Olson v. Co., (Minn.) 94 N.W. 871; Krakow v. Wille, (Wis.) 103 N.W. 1121; Royster v. Fretwell, (S. C.) 120 S.E. 715; Sample v. Lyons, 69 N.Y.S. 378; Bank v. Co., (Mont.) 197 P. 994; Welch v. Co., (Wash.) 134 P. 526; 39 Cyc. 2009; 7 R. C. L. 1148-51; Cogwell's Heirs v. Lyon, 26 Ky. 38; Hurst v. Means, 34 Tenn. 546. Plaintiff was compelled to yield to a paramount title. Hawkins v. Merritt, (Ala.) 19 So. 589; Kicks v. Bank, (N. D.) 98 N.W. 408; Quirk v. McDonnell, 195 Ill.App. 331. An action for damage was plaintiff's only remedy. Leisch v. Baer, (S. D.) 123 N.W. 719; Hawkins v. Wilson, 1 W.Va. 117; Greenberg v. Ray, 108 So. 385; Wilhelm v. Fimple, 31 Ia. 131; Teachenor v. Tibbals, (Utah) 86 P. 483. The guaranty was absolute and unconditional; 12 R. C. L. 1064; Benjamin v. Hilliard, 64 U.S. 149; Hecht v. Coal Co., 19 Wyo. 10; Bank v. Ayeres, (Wyo.) 259 P. 804; Pulaski Co. v. Lumber Co., (Ky.) 128 S.W. 96; Ives v. Williams, (Va.) 129 S.E. 675. The liability of the grantor was co-extensive with that of the principal. Scheindelman v. Colyer, 106 N.Y.S. 762; Murphy v. Hart, 107 N.Y.S. 452; Syndicate v. Co., (Ore.) 170 P. 294; Pheiffer v. Crossley, (N. J.) 103 A. 1000; Heyman v. Dooley, (Md.) 26 A. 117; Schultz v. Wise, 141 N.W. 813; Co. v. Belcher, (Mo.) 104 S.W. 894. Notice was not required unless stipulated for. Lumber Co. v. Gravlee, (Ala.) 73 So. 291; Mamerow v. Co., (Ill.) 69 N.E. 504; Dixon v. Schwartz, 205 Ill.App. 349; neither of the defendants can complain unless the judgment be erroneous as to both. McIntosh v. Wales, 21 Wyo. 397; Greenawalt v. Co., 16 Wyo. 226. The grantor is bound by all of the terms of his contract. Harman v. Hartman, (Ia.) 160 N.W. 295; 28 C. J. 995. The liability of defendants in this case was fixed when the company failed to perform. Smith v. Rogers, 14 Ind. 224; Little v. Bradley, (Fla.) 31 So. 342.

BLUME, Chief Justice. KIMBALL and RINER, JJ., concur.

OPINION

BLUME, Chief Justice.

On December 6, 1923, a contract in writing was entered into between the Wasatch Development Company, hereinafter called the Development Company, as party of the first part, and Oswald T. Hawkins, respondent herein, and his wife, as parties of the second part. According to the terms of the contract, the parties traded lands, the Development Company agreeing to sell and Hawkins and wife agreeing to buy eighty acres of land in Salt Lake County, Utah, for the sum of $ 16,000. Of this sum, $ 11,600 was to be paid by an exchange of 210 acres of land in Idaho and the personal property thereon then owned by Hawkins and wife, this land to be taken over by the Development Company. The balance of $ 4400 was agreed to be paid in ten annual instalments of $ 440 each, the first instalment to be paid on December 6, 1927 and an additional one on the same day of each year thereafter until the whole amount was fully paid. The contract provided, among other things, that "a good and sufficient warranty deed, together with abstract of title showing clear and unencumbered title, to be delivered to second parties when the said payments are made in full together with interest." This clause presumably referred to the Utah property. And it was further provided that "in the event of the death or total disability of Oswald T. Hawkins, one of the second parties hereto, before all of the payments are made hereunder, first party agrees to deliver to him or his heirs a free and unencumbered title" to such portion of the Utah property as had then been fully paid for, the remaining payments to be cancelled. By another clause of the contract, which, it is agreed, is a minor covenant not authorizing the cancellation of the whole contract, Hawkins agreed to devote some of his time, commencing with the spring of 1924, to cultivating land of the Development Company adjoining the eighty acres above mentioned, and he was to receive therefor the sum of $ 100 per month. The Development Company also agreed to erect a frame house on the eighty acres bought by Hawkins and wife at a cost not to exceed $ 1500, and to erect a barn and to lay a pipeline to the land to supply it with water. At the end of the contract appeared the following guaranty:

"In consideration of the premises we the undersigned hereby guarantee to second parties the fulfillment of the obligations herein undertaken by the first party."

This was signed by George E. Stoffers and Oscar R. Stoffers, defendants and appellants herein, and by Jeremiah Stokes, Samuel E. Wolley, Charles E. Hayes and J. J. Morey, the last four not being parties to this suit.

Probably on the same date on which the contract was made Hawkins and wife made and executed deeds to the Idaho property, delivering them to the Development Company. The land was deeded in two parcels. In one of the deeds, for 160 acres, George E. Stoffers was the grantee. In the other, the Guaranteed Securities Company appears as grantee. There has, however, been an erasure and Hawkins and wife testified that the deed was in fact made to the Development Company. Hawkins, the respondent herein, took possession of the Utah property in the spring of 1924 and continued in possession until shortly before the commencement of this action. In the meantime improvements were placed on the property as provided by the contract above mentioned, and in addition thereto Hawkins himself expended thereon the sum of $ 1237.00. He also farmed the adjoining land as he had agreed to do and was regularly paid the sum of $ 100 per month up to September, 1925, the payments being made by the Guaranteed Securities Company. The amounts due for the months of September to December, both inclusive, were not paid and are sought to be recovered in this action.

The Development Company ceased to do business in the spring of 1924 and thereafter its charter was dissolved by advertisement. The Guaranteed Securities Company became insolvent in the fall of 1925 and went into the hands of a receiver. It is claimed that the Development Company was a subsidiary of, or closely connected with, the Guaranteed Securities Company. The directorate of the two companies was largely composed of the same persons. The Guaranteed Securities Company, it appears, made the payments of $ 100 per month to Hawkins as already indicated, and there is testimony tending to show that it also paid for the improvements agreed to be erected on the Utah property pursuant to the contract above mentioned. This company also came into possession of the deeds to the Idaho property executed by Hawkins and wife as above mentioned. The receiver, so he testified, took possession of them and of the property covered thereby, made disposal thereof and received the purchase price therefor. The business transacted between Hawkins and wife and the Development Company was transacted in the offices of the Guaranteed Securities Company. The receiver found an assignment of the contract with Hawkins made by the Development Company to the Guaranteed Securities Company, dated December 15, 1923, in the office of the latter company, but in a rather unusual place, and it is not clear from this testimony alone that it came into the possession of the latter company....