Merritt v. Adams County Land & Investment Company, a Corporation

• Decision Date: 21 January 1915
• Citation: 151 N.W. 11,29 N.D. 496
• Court: North Dakota Supreme Court

151 N.W. 11

29 N.D. 496

C. E. MERRITT v. ADAMS COUNTY LAND & INVESTMENT COMPANY, a Corporation

Supreme Court of North Dakota

January 21, 1915

Rehearing denied February 10, 1915.

Action for specific performance of a contract to convey land, with subsequent supplemental complaint for damages. Appeal from the District Court of Adams County, Crawford, J. Judgment for plaintiff. Defendant appeals.

Affirmed.

P. D Norton, John Carmody, Karl L. Hjort, for appellant.

The measure of damages, if any, is the difference between what plaintiff paid or agreed to pay for the land, and the market value, if such value was more than the price plaintiff was to pay, and not what some third party may have agreed to pay. Rev. Codes 1905, § 6563; Beck v. Staats, 16 L.R.A. (N.S.) 768, and cases cited in notes found on pages 768, 772.

The damages in such cases must be clearly ascertainable, not speculative. Hudson v. Archer, 9 S.D. 240, 68 N.W. 541.

E. C. Wilson and Amos N. Goodman, for respondent.

The trial court at no time treated this suit as two separate actions,--one for specific performance and one for damages for breach of contract. The question of damages was not thought of until plaintiff offered proof that he had resold the land. Then all parties agreed to call in a jury for the sole purpose of fixing the amount of the damages. The verdict was merely advisory thereon; the action still retained its equity form in the hands of the court. This procedure is a well-recognized rule in such cases, and for the limited purpose stated, and was here adopted without objection. Van Dusen v. Bigelow, 13 N.D. 277, 67 L.R.A. 288, 100 N.W. 723; Mitchell v. Knudtson Land Co. 19 N.D. 738, 124 N.W. 946; 1 Pom. Eq. Jur. § 237, p. 342; Rev. Codes 1905, § 6663.

Evidence of facts which admit the act charged, but which avoid its force or effect, is inadmissible. Bliss, Code Pl. 240, 327, 341, 352; Piercy v. Sabin, 10 Cal. 22, 70 Am. Dec. 692, as quoted under § 329 of Bliss, Code Pl.

Even if our contract were not signed by the company, still it is liable, for respondent performed it. The recitals of a contract as to payments received are conclusive. McPherson v. Fargo, 10 S.D. 611, 66 Am. St. Rep. 723, 74 N.W. 1057.

A party who has signed a written contract may be compelled to perform it, though the other party has not signed it, if the latter has performed or offered to perform it on his part, and the case is a proper one for specific performance. Gira v. Harris, 14 S.D. 537, 86 N.W. 624; McPherson v. Fargo, 10 S.D. 611, 66 Am. St. Rep. 723, 74 N.W. 1057; Rev. Codes 1905, § 6660.

If the company in fact has the by-law which it claims to have, it can recover full compensation from Jackson for any damages it is compelled to pay plaintiff. The plaintiff cannot recover from Jackson, for he had no dealings with him. Imhoff v. House, 36 Neb. 28, 53 N.W. 1032; Coles v. Iowa State Mut. Ins. Co. 18 Iowa 425; Palmyra v. Morton, 25 Mo. 593; Buffalo v. Webster, 10 Wend. 99.

A third party had agreed to buy the land for a fixed price. His testimony on this point was competent on the question of general damages to plaintiff. Northwestern Fuel Co. v. Mahler, 36 Minn. 166, 30 N.W. 756.

"He who takes the benefit must bear the burden." Rev. Codes 1905, § 6668.

The company should have affirmed or disaffirmed the whole contract; there was no middle road for it. It cannot disaffirm as to the part that is onerous, and affirm and retain so much of it as is beneficial. It cannot keep the advantage gained, and repudiate the burden. It cannot keep the consideration in whole or in part, and disaffirm. Rev. Codes 1905, § 5310; Foulke v. San Diego & G. S. P. R. Co. 51 Cal. 365; Merchants' Union Barb Wire Co. v. Rice, 70 Iowa 14, 29 N.W. 784; Alexander v. Culbertson, Irrig. & Water Power Co. 61 Neb. 333, 85 N.W. 283; Moody & M. Co. v. Methodist Episcopal Church, 99 Wis. 49, 74 N.W. 572; Kneeland v. Gilman, 24 Wis. 39; Gano v. Chicago & N.W. R. Co. 60 Wis. 12, 17 N.W. 15; Kickland v. Menasha Wooden Ware Co. 68 Wis. 34, 60 Am. Rep. 831, 31 N.W. 471; Dedrick v. Ormsby Land & Mortg. Co. 12 S.D. 59, 80 N.W. 153; Hunt v. Northwestern Mortg. Trust Co. 16 S.D. 241, 92 N.W. 23; Moore v. Atlantic Mut. Ins. Co. 56 Mo. 343.

The contract was executed by the vice president, and is binding on the corporation. Smith v. Smith, 62 Ill. 493; Ellison v. Branstrator, 153 Ind. 146, 54 N.E. 433; Neosho Valley Invest. Co. v. Hannum, 10 Kan.App. 499, 63 P. 92; Home Sav. & State Bank v. Wheeler, 74 Ill.App. 261; Leroy & C. Valley Air Line R. Co. v. Sidell, 13 C. C. A. 308, 26 U. S. App. 656, 66 F. 27; Minor v. Mechanics' Bank, 1 Pet. 46, 7 L.Ed. 47; American Exch. Nat. Bank v. Ward, 55 L.R.A. 356, 49 C. C. A. 611, 111 F. 782; Wait v. Nashua Armory Asso. 66 N.H. 581, 14 L.R.A. 360, 49 Am. St. Rep. 630, 23 A. 77.

His signing as general manager alone also binds the corporation. Western Homestead & Irrig. Co. v. First Nat. Bank, 9 N. M. 1, 47 P. 721; Hurst v. American Asso. 105 Ky. 793, 49 S.W. 800; Auburn Bank v. Putnam, 1 Abb. App. Dec. 80; Jones v. Williams, 139 Mo. 1, 37 L.R.A. 688, 61 Am. St. Rep. 436, 39 S.W. 486, 40 S.W. 353; Sparks v. Despatch Transfer Co. 104 Mo. 531, 12 L.R.A. 714, 24 Am. St. Rep. 351, 15 S.W. 417; Conely v. Collins, 119 Mich. 519, 44 L.R.A. 844, 78 N.W. 555; Goodwin v. Union Screw Co. 34 N.H. 378; Hamm v. Drew, 83 Tex. 77, 18 S.W. 434.

The by-laws of the corporation limiting the powers of its officers are only private rules, and have no effect on strangers. California Ins. Co. v. Gracey, 15 Colo. 70, 22 Am. St. Rep. 376, 24 P. 577; Hallenbeck v. Powers & W. Casket Co. 117 Mich. 680, 76 N.W. 119; Flint v. Pierce, 99 Mass. 68, 96 Am. Dec. 691; Mechanics' & F. Bank v. Smith, 19 Johns, 115; Samuel v. Holladay, Woolw. 400, F. Cas. No. 12,288.

Even if the vice president had no power to bind the corporation, still it is estopped to deny that he had, because of its acceptance of benefits. Seeley v. San Jose Independent Mill & Lumber Co. 59 Cal. 22; Grice v. Woodworth, 10 Idaho 459, 69 L.R.A. 584, 109 Am. St. Rep. 214, 80 P. 912; Gilbert v. American Surety Co. 61 L.R.A. 253, 57 C. C. A. 619, 121 F. 499; Reed v. Morton, 24 Neb. 760, 1 L.R.A. 736, 8 Am. St. Rep. 247, 40 N.W. 282; Barrell v. Lake View Land Co. 122 Cal. 129, 54 P. 594; Heinze v. South Green Bay Land & Dock Co. 109 Wis. 99, 85 N.W. 145; Bank of United States v. Danderidge, 12 Wheat. 64, 6 L.Ed. 552; Zabriskie v. Cleveland, C. & C. R. Co. 23 How. 381, 16 L.Ed. 488; Fayles v. National Ins. Co. 49 Mo. 380; Credit Co. v. Howe Mach. Co. 54 Conn. 357, 1 Am. St. Rep. 123, 8 A. 472; Farmers' & M. Bank v. Butchers' & D. Bank, 16 N.Y. 125, 69 Am. Dec. 678; Rev. Codes 1905, §§ 6664, 6690.

BRUCE, J. CHRISTIANSON, J., did not participate.

OPINION

Statement of facts by

BRUCE J.

This action was commenced on the 27th day of April, 1911, to compel the defendant to specifically perform a contract for the conveyance of land in Adams county, North Dakota. The defendant was a corporation organized under the laws of North Dakota for the purpose of buying and selling land. It had its principal office at Hettinger, Adams county, North Dakota. Nothing in the record shows that any particular building or place was set apart for that purpose, but the company had a representative at Hettinger, who lived on a nearby farm of the defendant company, and who was vice president of the company. This person, A. A. Jackson by name, also styled himself general manager, and was known by such appellation, at any rate by the bank with which his company dealt. The company seems to have had no other representative in North Dakota, its other officers and stockholders living in Indianapolis, Indiana. The plaintiff, seeking to buy land from the company, carried on, through his agent Bigham, negotiations with the said Jackson at Hettinger, and made a contract with him for the purchase of a section of land belonging to the company, and which contract was signed: "Adams County Land & Investment Company, by A. A. Jackson, V. P. Vice President and General Manager. C. E. Merritt, by Chas. Bigham, his agent." At the time of the making of such contract, and as a part thereof, the plaintiff's agent delivered to the said A. A. Jackson a check for $ 500, which was made payable to the Adams County Land & Investment Company. This check was afterwards indorsed by the said Jackson: "Adams County Land & Investment County, by A. A. Jackson, V. P. and Gen. Mngr.," and was deposited by him in a local bank to his own account, and the proceeds thereof were afterwards checked out by him. The record shows that the Adams County Land & Investment Company had no open account at the time with the bank, but from time to time sent money to Jackson which he deposited in his own name and paid small bills of the company therefrom, together with those of his own.

It transpired upon the trial that before the alleged contract was entered into the defendant had sold the land to another party, and was therefore unable to carry out its part of the agreement with the plaintiff. After hearing all the evidence in the case, except on the question of damages, the court made findings of fact and conclusions of law in favor of the plaintiff, but ordered that the action should be retained in equity for further proceedings to allow such plaintiff to establish his claim for damages. This so-called interlocutory judgment was filed on the 20th day of September, 1912. Later the plaintiff filed a supplemental complaint, and the case was tried on the question of damages before the court and a jury, at the January, 1912, term of the court, and a verdict was rendered in favor of the plaintiff for the sum of $ 1,850. The trial court then entered judgment on this verdict and the defendant has appealed.

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