Miller v. Sawbridge

• Decision Date: 20 October 1882
• Citation: 13 N.W. 671,29 Minn. 442
• Parties: Mary Miller v. Charles J. Sawbridge and another
• Court: Minnesota Supreme Court

13 N.W. 671

29 Minn. 442

Mary Miller v. Charles J. Sawbridge and another

Supreme Court of Minnesota

October 20, 1882

Appeal by defendants from an order of the district court for Otter Tail county, McKelvy, J., presiding, overruling their demurrer to the complaint, the substance of which is stated in the opinion.

Order affirmed.

Clapp & Howard, and Bigelow, Flandrau & Squires, for appellants.

The original contract is admitted to have been free from any fraud.The plaintiff does not ask to have that contract set aside, but only the deed under it.She merely complains of the manner in which the consideration was paid.Her only grievance is the form of the note, and the only relief she can under any circumstances be entitled to is a reformation of the note.This is not the relief prayed for.The plaintiff does not pray for the relief she is entitled to and she shows no title to the relief prayed for.The complaint fails to state a cause of action for the relief demanded.

Even if the complaint showed a cause of action for the reformation of the note, the difficulty remains that no such relief is demanded in the complaint, nor was any such demand made of the defendants before suit.Norris v. Milwaukee Dock Co.,21 Wis. 130;Blank v. Stone, 33 Ala. 327.

This is no case for the intervention of equity.The complaint states the exact damage sustained, viz.: $ 400, to recover which the plaintiff has a perfect remedy at law.McClane v White,5 Minn. 139, (178.)

J. W Mason, for respondent.

OPINION

Dickinson, J.

Appeal from an order overruling a demurrer to the complaint, upon the ground that it does not state facts sufficient to constitute a cause of action.The complaint alleges these facts: Plaintiff and defendants entered into a contract in writing, whereby plaintiff agreed to sell and convey to defendants, and the latter agreed to buy, certain land for the sum of $ 5,100, payable as follows: $ 1,000 cash, and $ 4,100 in five years after date of the note and mortgage to be given to secure such sum; the mortgage to be upon the same land, and the note to bear interest at the rate of ten per cent. per annum from date until paid.About two days after the making of the contract, the parties being together plaintiff, pursuant to the contract, executed and delivered a deed, conveying the land.Defendants paid plaintiff $ 1,000 as a part of the purchase price.The defendants also, at the time of the execution of the deed, made and delivered their promissory note for $ 4,100, and executed a mortgage upon the land to secure the same.The note, however, was made in terms payable "on or before five years from date," instead of "five years after date."The plaintiff cannot read English at all, and could not read the note.Her husband, who was present, can read writing but poorly, and with great difficulty.The defendants, by false and fraudulent representations, and by artifice, prevented the husband of plaintiff, or any one else on her behalf, from reading it, but they fraudulently, and with a view of gaining an unfair and dishonest advantage of the...