London & Northwest American M. Co. v. McMillan

• Decision Date: 15 November 1899
• Docket Number: Nos. 11,724 - (32).,s. 11,724 - (32).
• Citation: 78 Minn. 53
• Parties: LONDON & NORTHWEST AMERICAN MORTGAGE COMPANY v. JAMES McMILLAN.
• Court: Minnesota Supreme Court

Page 53

78 Minn. 53

LONDON & NORTHWEST AMERICAN MORTGAGE COMPANY v. JAMES McMILLAN.

Nos. 11,724 - (32).

Supreme Court of Minnesota.

November 15, 1899.

Action in the district court for Ramsey county to enforce specific performance of a contract for purchase of land. The complaint alleged in substance, among other things, that plaintiff was on September 22, 1892, owner of a note and mortgage made by defendant to secure payment of $15,000 and interest, and that defendant was then in default; that plaintiff and defendant then entered into a contract whereby plaintiff agreed to foreclose the mortgage and bid in the premises for the full amount of the debt and expenses of foreclosure, and to assign the sheriff's certificate of sale to defendant for the amount so to be bid and interest, and whereby defendant agreed to pay said sum in consideration of such assignment; that on execution of the contract defendant paid $602.80 on account; that plaintiff caused the mortgage to be foreclosed, and on

November 14, 1892, bid in the premises for $16,063.90; that on December 27, 1892, defendant paid plaintiff on account the further sum of $5,515.90, and that the time for payment of the balance was extended until November 14, 1893; that on September 30, 1893, the time for payment was extended until November 14, 1895, and that in consideration of the extension defendant agreed to pay the balance and interest at that date, and to pay taxes on the premises; that on April 1, 1898, plaintiff tendered performance, but that defendant refused to perform; and that the reasonable value of the premises was $5,000. The answer was a general denial. The case was tried before Kelly, J., who found the foregoing facts, and as conclusions of law found that there was due to plaintiff on the contract $13,344.44; that plaintiff was entitled to judgment that defendant pay said sum with costs within 90 days after service upon him of a copy of the judgment to be entered and on delivery of a deed of the premises and an assignment of the sheriff's certificate; and that in default of such payment plaintiff be adjudged to be the owner of the land free from redemption, and recover of defendant $8,344.44 with costs. From a judgment entered pursuant to the findings, defendant appealed. Affirmed.

Jayne & Halliwell, for appellant.

W. H. Yardley, for respondent.

COLLINS, J.

1. The first, second, third, and fifth assignments of error, relating to rulings of the trial court when receiving evidence, are valueless to defendant's counsel, because no exceptions were taken to the rulings in question.

2. The fourth assignment is that the court erred when admitting testimony as to the value of the real property on April 1, 1898, "or on any other date than November 14, 1892." The force of this assignment of error is controlled by that part which we have quoted, and it therefore amounts to nothing more than the contention that the measure of damages was the difference between the contract price November 14, 1892, the day on which defendant was to take the assignment of the sheriff's certificate, and the value of the property on that day. This assignment is also without merit. There was no breach of the contract on November 14, 1892, on which an action could be based; for it stands admitted by all parties that subsequently, December 27, 1892, defendant...