Iowa-Minnesota Land Co. v. Conner
| Decision Date | 03 July 1907 |
| Citation | 112 N.W. 820,136 Iowa 674 |
| Parties | IOWA-MINNESOTA LAND COMPANY, Appellant, v. L. L. CONNER, L. J. CONNOR, JESSIE I. MALSED, ALEXANDER MALSED, Executors of the estate of NIAL MCDONALD, deceased |
| Court | Iowa Supreme Court |
REHEARING DENIED MONDAY, DECEMBER 16, 1907.
Appeal from Franklin District Court.--HON. J. H. RICHARD, Judge.
NIAL MCDONALD died testate in October, 1904, and the defendants are the duly appointed executors of his estate. On the twenty-second day of March, 1905, the plaintiff filed a petition in the district court against them as such executors, praying for the establishment of a claim for the amount due on the contract for the sale of two hundred and forty acres of land to deceased. The executors admitted there to be due plaintiff on the contract the amount alleged, $ 2,225, but pleaded a counterclaim based on a similar agreement, wherein plaintiff stipulated that upon the conveyance of ten acres of land in Hamilton county, Iowa at the price of $ 2,500 and the payment of the balance at the rate of $ 10 per acre in payments, it would convey to deceased section 13, in township 138 north, range 28 west, of fifth P. M., situated in Crow Wing county, Minn., excepting a railway right of way through the land, that it would also erect or cause to be erected a store building on said premises and cause to be installed a stock of goods therein. The deceased performed his part of the contract, but plaintiff wholly failed to construct the store building as agreed, and defendants allege that, had this been done, the land would have been worth $ 10 per acre, and, owing to the omission of the plaintiff to perform its agreement, the deceased was damaged in the sum of $ 3,135, for which they demanded judgment. The jury returned a verdict for the defendant in the sum of $ 372, and judgment was entered thereon. The plaintiff appeals.
Affirmed.
Taylor & Evans, for appellant.
John M Hemmingway, for appellee.
The amount claimed by the Iowa-Minnesota Land Company as the balance due on a contract for the sale of land to the deceased, Nial McDonald, was admitted by the executors of his estate. They set up a counterclaim for damages resulting to him from a breach of a like contract. The plaintiff moved that its claim be allowed on the ground that it had been admitted, and that a court in probate was without jurisdiction to hear and determine matters pleaded in the counterclaim. This motion was overruled, and rightly so. The action was not in probate. The plaintiff elected to prosecute its claim by ordinary proceedings in the district court. Having filed its petition therein, the executors had the right to interpose by way of answer any defense thereto or counterclaim permissible in such an action. The contract sued on was breached, if at all, during the lifetime of the deceased, and a claim for damages occasioned thereby might be asserted by the executors. See Willard v. Fralick, 31 Mich. 431; 18 Cyc. 507. The district court had jurisdiction to hear and determine the cause of action set up in the counterclaim, as well as that alleged in the petition. Clough v. Ide, 107 Iowa 669, 78 N.W. 697.
II. A demurrer to the counterclaim was overruled. Error in so doing, if such it were, was waived by answering to the merits. Frum v. Keeney, 109 Iowa 393, 80 N.W. 507; Marshall Ice Co. v. La Plant, 136 Iowa 621, 111 N.W. 1016.
III. The deceased purchased section 13, in township 138 north, of range 28 west, of the fifth P. M., in Crow Wing county, Minn., on the 17th of March, 1903, and as a part of the contract, it was agreed "that the said Iowa-Minnesota Land Company shall erect, or cause to be erected, either by themselves or some other party, a store building on the above-described land at some convenient place to be hereafter agreed on by the said Iowa-Minnesota Land Company and the said N. McDonald; said site, however, to be not more than forty rods from the right of way of the present railroad running through the above-described land, said building to be erected during the season of 1903, a stock of general merchandise to be kept therein and a general merchandise business carried on." This was undertaken, it must be assumed, as a part of the consideration for which the purchase price was paid. The plaintiff objected to the introduction of this contract in evidence on three grounds: (1) That the stipulation with respect to the erection of a store building and placing a stock of goods therein was too indefinite to be enforced; (2) that the duty of seeing that a site was selected devolved upon deceased as a condition precedent; and (3) that the damages resulting from a breach were too remote and speculative.
Taking these propositions up in the order named, it must be conceded that the contract is not as specific as it might have been. This, however, is not an action for specific performance. Had it been, some difficulty might be experienced in determining the size of the building to be erected, as well as the extent of the stock of goods to be installed. It is to be presumed, however, that such a store and stock were contemplated by the parties as would fairly accommodate the trade of that locality. The plaintiff was bound under this agreement to erect a building reasonably adapted to use as a store, and to install a stock of goods such as might reasonably be expected to meet the needs of the community. That such improvements need not be more specifically described in order to render the party promising to make them liable for failing to do so appears from Wilson v. Yocum, 77 Iowa 569, 42 N.W. 446. See Fraley v. Bentley, 1 Dak. 25 (46 N.W. 506). In the first of these cases none of the improvements agreed to be made were described, and yet the court held the agreement sufficiently specific as a basis for damages. It is said that the building would be of no consequence without a stock of goods, and that the agreement does not provide that the stock is to be placed in the building by plaintiff, or that it is to carry on a general mercantile business. It is stipulated, however, that the stock shall be kept therein and the business carried on. While plaintiff did not undertake to do this, it did agree that this would be done. No time within which the stock was to be installed is expressly indicated, but the rule is well settled that, where a person undertakes to do a thing, it is to be inferred that he will perform within a reasonable time. The erection of a building necessarily must have preceded the installation of the stock, and, as neither was done, there was a breach of both undertakings. We think the contract sufficiently definite under the decisions cited to render plaintiff liable for its breach.
IV. The location of the store was "to be hereafter agreed upon between" the parties. Appellant insists that an agreement on the location was a condition precedent to the right of action, and that such an agreement or an excuse for not making it should have been alleged in the petition and proven. The time for the erection of the building was specified, so that no demand was essential. It was to be located at a convenient point on the premises not more than forty rods from the right of way of the railroad. It was optional with the plaintiff when it would begin the building as the contract only required that it be constructed within a certain time. No affirmative action was essential on the part of the deceased to render the stipulation binding. If he refused to negotiate or agree with respect to a suitable location, that was a matter of excuse or defense for not erecting the building. The burden was upon the plaintiff to perform its obligation, and, until it had indicated its purpose to do so, deceased was not called upon to act. The plaintiff was required to do all that was necessary for its part in order to construct the building within the time stipulated. McDonald was not in default, and could not have been, save by refusing to agree upon a site. To hold otherwise would require the deceased to take the initiative in the matter of carrying out...
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Iowa-Minn. Land Co. v. Conner
... ... The jury returned a verdict for the defendant in the sum of $372, and judgment was entered thereon. The plaintiff appeals. Affirmed.[112 N.W. 821]Taylor & Evans, for appellant.John M. Hemmingway, for appellee.LADD, J.The amount claimed by the Iowa-Minnesota Land Company as the balance due on a contract for the sale of land to the deceased, Nial McDonald, was admitted by the executors of his estate. They set up a counterclaim for damages resulting to him from a breach of a like contract. The plaintiff moved that its claim be allowed on the ground that ... ...