McCulloch v. Bauer
| Decision Date | 05 December 1912 |
| Docket Number | 81912 |
| Citation | 139 N.W. 318,24 N.D. 109 |
| Parties | MCCULLOCH et al. v. BAUER |
| Court | North Dakota Supreme Court |
Appeal by plaintiffs from a judgment of the District Court for Stuttman County, A. G. Burr, Special J., in defendant's favor in an action brought to recover damages for breach of a contract to purchase certain property.
Affirmed.
Knauf & Knauf, for appellant.
Defendant having refused to complete the deal on the ground that he "could not raise the money" to make the payment precludes him from thereafter raising or attempting to raise other objections or reasons for his failure to perform. Johnson v. Oppenheim, 55 N.Y. 291; Morris v Sliter, 1 Denio, 59; Mattock v. Kinglake, 10 Ad. & El. 56, 2 Perry & D. 343, 8 L. J. Q. B. N. S. 215, 3 Jur. 699; Donovan v. Judson, 81 Cal. 334, 6 L.R.A 593, 22 P. 682; Harmon v. Thompson, 119 Ky. 528, 84 S.W. 572; Wasson v. Palmer, 17 Neb. 330, 22 N.W 774; Schwartz v. Woodruff, 132 Mich. 513, 93 N.W 1067; Converse v. Blumrich, 14 Mich. 120, 90 Am. Dec. 230; Pike v. Butler, 4 N.Y. 360; Kenyon v. Knights Templar & M. Mut. Aid Asso. 122 N.Y. 247, 25 N.E. 299.
Seiler & Aylmer and Thorp & Chase, for respondent.
Vendor was to convey a marketable title. Warvelle, Vend. & P. § 419; 39 Cyc. 1442; Greenwood v. Ligon, 10 Smedes & M. 615, 48 Am. Dec. 775; Easton v. Lockhart, 10 N.D. 181, 86 N.W. 698; Brandenburg v. Phillips, 18 N.D. 200, 119 N.W. 543; Justice v. Button, 89 Neb. 367, 38 L.R.A.(N.S.) 1, 131 N.W. 736; Howe v. Coates, 97 Minn. 385, 4 L.R.A.(N.S.) 1170, 114 Am. St. Rep. 723, 107 N.W. 397; Brown v. Widen, Iowa , 103 N.W. 158; Godfrey v. Rosenthal, 17 S.D. 452, 97 N.W. 365; Younie v. Walrod, 104 Iowa 475, 73 N.W. 1021; Fagan v. Hook, 134 Iowa 381, 105 N.W. 155, 111 N.W. 981; Weaver v. Richards, 144 Mich. 395, 6 L.R.A.(N.S.) 855, 108 N.W. 382; 8 Words & Phrases, 7404; Weitzel v. Leyson, 23 S.D. 367, 121 N.W. 868; Sherman v. Beam, 27 S.D. 218, 130 N.W. 442; Davis v. Jeffris, 5 S.D. 352, 58 N.W. 815; Buswell v. O. W. Kerr Co. 112 Minn. 388, 128 N.W. 459, 21 Ann. Cas. 837.
In order to render evidence of a subsequent parol agreement admissible to vary the terms of a written contract, it is necessary that such subsequent agreement be founded upon a consideration. Swan v. Drury, 22 Pick. 489; 17 Cyc. 736 and cases cited; 1 Beach, Contr. §§ 777-781; Barnard & L. Mfg. Co. v. Galloway, 5 S.D. 205, 58 N.W. 565; Broads v. Mead, 159 Cal. 765, 116 P. 46, Ann. Cas. 1912 C, 1125; Robinson v. Yetter, 238 Ill. 320, 87 N.E. 366.
The seller should not be compelled to part with his property without receiving a consideration, nor the purchaser to part with his money without an equivalent in return. 1 Beach, Contr. § 89; Davis v. Jeffris, 5 S.D. 352, 58 N.W. 815; Lester v. Jewett, 11 N.Y. 453; Kane v. Hood, 13 Pick. 281; Swan v. Drury, 22 Pick. 485; Williams v. Healey, 3 Denio, 363; Grant v. Johnson, 5 N.Y. 247; Dunham v. Pettee, 8 N.Y. 508; Ink v. Rohrig, 23 S.D. 548, 122 N.W. 594; Arnett v. Smith, 11 N.D. 55, 88 N.W. 1037; Glenn v. Rossler, 156 N.Y. 161, 50 N.E. 785; Bank of Columbia v. Hagner, 1 Pet. 455, 7 L.Ed. 219; Shelly v. Mikkelson, 5 N.D. 22, 63 N.W. 210; Parker v. Parmele, 20 Johns. 130, 11 Am. Dec. 253; Howe v. Mitchell, 17 Me. 85, 35 Am. Dec. 231; Shinn v. Roberts, 20 N.J.L. 435, 43 Am. Dec. 636; Johnson v. Jackson, 27 Miss. 498, 61 Am. Dec. 522; Stein v. Waddell, 37 Wash. 634, 80 P. 184; 39 Cyc. 1307, and cases cited; Ames v. Ames, 46 Ind.App. 597, 91 N.E. 509; Tripp v. Smith, 180 Mass. 122, 61 N.E. 804; Sennett v. Shehan, 27 Minn. 328, 7 N.W. 266; Jones v. Gardner, 10 Johns. 266; Kessler v. Pruitt, 14 Idaho 175, 93 P. 965; 1 Warvelle, Vend. & P. § 113, and cases cited; World's Fair Min. Co. v. Powers, 12 Ariz. 285, 100 P. 957; Delaware Trust Co. v. Calm, 195 N.Y. 231, 88 N.E. 53; Martin v. Roberts, 127 Iowa 218, 102 N.W. 1126; Webb v. Hancher, 127 Iowa 269, 102 N.W. 1127; Runkle v. Johnson, 30 Ill. 328, 83 Am. Dec. 191; Powell v. Dayton, S. & G. R. R. Co. 14 Ore. 356, 12 P. 665.
In order to charge one in damages for breach of an executory personal contract, the other party must show a refusal or neglect to perform at a time when and under conditions such that he is or might be entitled to require performance. 2 Warvelle, Vend. & P. § 935, p. 1113; Frazier v. Cushman, 12 Mass. 277; Hapgood v. Shaw, 105 Mass. 276; Godfrey v. Rosenthal, 17 S.D. 452, 97 N.W. 365; Ink v. Rohrig, 23 S.D. 548, 122 N.W. 594; Cornett v. Best, 151 Mo.App. 546, 132 S.W. 35; Daniels v. Newton, 114 Mass. 533, 19 Am. Rep. 384; Boulware v. Crohn, 122 Mo.App. 571, 99 S.W. 796; Stanford v. McGill, 6 N.D. 536, 38 L.R.A. 760, 72 N.W. 940; Dosch v. Andrus, 111 Minn. 287, 126 N.W. 1071; 2 Warvelle, Vend. & P. § 905; Rev. Codes 1905, § 6617; Loudenback Fertilizer Co. v. Tennessee Phosphate Co. 61 L.R.A. 402, 58 C. C. A. 220, 121 F. 298; Wood, C. & Co. v. Seurich, 5 Cal.App. 252, 90 P. 51; Cadwell v. Smith, 83 Neb. 567, 120 N.W. 130; Davis v. Jeffries, 5 S.D. 352, 58 N.W. 816; Delaware Trust Co. v. Calm, 195 N.Y. 231, 88 N.E. 53; Stein v. Waddell, 37 Wash. 634, 80 P. 185; Rev. Codes 1905, §§ 5245, 5254; Arnett v. Smith, 11 N.D. 55, 88 N.W. 1037; Webb v. Hancher, 127 Iowa 269, 102 N.W. 1129; Martin v. Roberts, 127 Iowa 218, 102 N.W. 1126; Easton v. Lockhart, 10 N.D. 181, 86 N.W. 702.
Where a contract, for any reason, is incapable of being enforced as against one party, it cannot be enforced as against the other. Black Hills Nat. Bank v. Kellogg, 4 S.D. 312, 56 N.W. 1073; Brown v. Whiden, Iowa , 103 N.W. 158; Justice v. Button, 89 Neb. 367, 38 L.R.A.(N.S.) 1, 131 N.W. 736; Kicks v. State Bank, 12 N.D. 576, 98 N.W. 408; Frazier v. Boggs, 37 Fla. 307, 20 So. 245; Smith v. Taylor, 82 Cal. 533, 23 P. 217; Shelly v. Mikkelson, 5 N.D. 22. 63 N.W. 211.
When both parties are in default at the same time, neither can recover damages from the other. 2 Warvelle, Vend. & P. §§ 918, 925, 926; Kicks v. State Bank, 12 N.D. 576, 98 N.W. 408; Stanford v. McGill, 6 N.D. 536, 38 L.R.A. 760, 72 N.W. 940; Reynolds v. Burlington & M. R. Co. 11 Neb. 186, 7 N.W. 737; Smith v. Cedar Rapids & M. River Co. 43 Iowa 239; Bigler v. Morgan, 77 N.Y. 312; Dunham v. Pettee, 8 N.Y. 508; Chicago, B. & Q. R. Co. v. Cochran, 42 Neb. 531, 60 N.W. 894.
Plaintiffs, who are the appellants, brought this action in the district court of Stuttsman county to recover from defendant and respondent damages in the sum of $ 6,150 and interest, for the alleged breach on defendant's part of a written contract entered into between the parties, by the terms of which plaintiffs agreed to sell to defendant, and the latter agreed to purchase from the plaintiffs, certain real and personal property in the city of Jamestown. Such contract is not very lengthy, and we deem it advisable to set the same out in full in this opinion. It is as follows:
Jamestown, North Dakota, April 28, 1910.
This agreement, made and entered into this day by and between John McCulloch and C. F. Mudgett, copartners as McCulloch & Mudgett, parties of the first part, and Otto Bauer, party of the second part, witnesseth:
That the party of the first part hereby agrees to sell to the said second party, and the said second party hereby agrees to purchase from the said first party, the lumber and fuel business operated by them at Jamestown, North Dakota, together with all stock of lumber and fuel, all horses (4), wagons, harnesses, all office furniture and fixtures, engine, saw and splitter, together with the following described real estate: Lots 1, 2, 3, 4, 5, 6, 7, and 8, block 31, original plat of Jamestown, North Dakota, lot 10, block 67, Klaus's second addition to Jamestown, North Dakota, at the following prices: Lots 1, 2, 3, 4, 5, 6, 7, and 8, block 31, together with all sheds, horses, and machinery, office furniture and fixtures, wood machinery, for the sum of twelve thousand five hundred dollars ($ 12,500).
Lot 10, block 67, as above, for the exact cost of said lot, together with the improvements thereon, this figure to be arrived at by bills to be submitted by John McCulloch. The stock of lumber to be sold and bought on the basis of the present wholesale list of same f. o. b. cars Jamestown, North Dakota, with 50c per M. to be added for handling; all other building material at the present wholesale price with handling charges added. All hard coal at $ 8.50 per ton, and other coal at present wholesale price.
Said stock to be invoiced on May 2, 1910, and possession to be given immediately on completion of inventory and settlement.
Said second party agrees to pay for said business, real estate, stock, etc., as follows: The sum of two hundred dollars ($ 200) on signing of this agreement; the balance of said purchase price on completion of inventory, except that the said John McCulloch hereby agrees to carry the sum of thirty-five hundred dollars ($ 3,500) on lot 10, block 67, aforesaid, on a first mortgage, for the period of three years at the rate of 7 per cent per annum.
Said first party agrees to furnish said second party with abstract for property sold, and to give said second party a warranty deed for the same.
Said first party further agrees to guarantee the cost of moving coal shed, engine house, office, and lumber shed, to not exceed the sum of two hundred dollars ($ 200), but reserves the right to cause same to be moved for this amount in case said second party cannot contract for this amount or less.
Said first party further agrees that the said second party shall have the option of taking such lumber as he shall decide on of the stock now purchased for the Jamestown yard, at the prices at which such material is bought, and said second party agrees to fill all unfinished estimates of said first party, at prices at which stock is sold him, said amounts to be deducted...
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