Ott v. Pace

• Decision Date: 22 March 1911
• Citation: 115 P. 37,43 Mont. 82
• Parties: OTT v. PACE et al.
• Court: Montana Supreme Court

115 P. 37

43 Mont. 82

OTT v. PACE et al.

Supreme Court of Montana

March 22, 1911

Appeal from District Court, Jefferson County; Lew L. Callaway Judge.

Action by Sebastian Ott against Ike E.O. Pace and others. From a judgment sustaining a general and special demurrer to the amended complaint, plaintiff appeals. Affirmed.

Lewis A. Smith, for appellant.

M. H Parker and Ike E. O. Pace, for respondents.

HOLLOWAY J.

This suit was brought to secure the cancellation of two certain contracts and the return of certain moneys paid under them. To the amended complaint a general and special demurrer was sustained, and plaintiff, electing to stand upon his pleading, suffered judgment to be entered against him, and has appealed to this court.

From the amended complaint we gather these facts: In August, 1907 defendants Pace and Woods owned and were in possession of some 634 acres of land near Whitehall, Mont., together with certain water rights and water ditches, also a leasehold interest in 160 acres of state land, and owned and possessed certain personal property consisting of crops then on the land, farm machinery, and live stock; that on August 20 1907, plaintiff and Pace and Woods entered into a contract for the sale of the real estate and personal property by Pace and Woods to Ott, for the sum of $19,500, payable $5,000 in cash, $4,500 in six months, $5,000 in 18 months, and 5,000 in 2 years, the deferred payments to be secured by the deposit of certain certificates representing shares of the capital stock of the Ritzville (Wash.) flouring mill; that the notes representing the deferred payments, the securities, and a warranty deed were to be deposited with the Whitehall State Bank as trustee for the parties; that the first payment was made, and plaintiff took possession of the property and harvested and used the crops of 1907; that, when the first installment note fell due, Ott was unable to meet the payment; that he was permitted to withdraw from the trustee certificates representing 55 shares of the mill stock, and these he sold for $6,033.20 and paid the delinquent installment; that on July 1, 1908, a new contract was entered into between Ott and the Pace-Woods Improvement Company, a corporation; that this new contract recites the existence of the former one; that the corporation had succeeded to all the rights and interests of Pace and Woods, and provides that the contract of August 20, 1907, "is hereby set aside and annulled and all parties released therefrom"; that the new contract provides for the release of the remaining shares of the mill stock to Ott, and fixes the payment of the balance due on the property in smaller installments and extending over a longer period of time; and that on December 23, 1909, Ott gave up possession of the property. The institution of this suit followed immediately.

It is alleged in the complaint that the first contract was procured by false representations on the part of Pace and Woods, in that they represented to plaintiff that the soil of the land in question was rich and productive; that the crops then on the place (August, 1907) consisted of 500 tons of hay of the value of $5,000, 600 sacks of potatoes of the value of $600, 4,000 bushels of oats of the value of $2,000, and 8 acres of peas of great value for feeding stock; and that the average yearly crops theretofore raised on the premises equaled in amount and value the crops then on the premises. It is alleged that these representations were false; that the soil was rich and productive only in spots; that much of it was gumbo, in which nothing but greasewood and noxious weeds would grow; that the crops on the premises in August, 1907, consisted of only 150 tons of hay, which was practically valueless on account of the presence of large quantities of noxious weeds and grasses which rendered it unfit for stock or other purposes, only 1,385 bushels of oats and 100 sacks of potatoes, and that all of the crops did not exceed in value $800; that the statement of the amount and value of the crops theretofore raised on the premises was false, and that the average yield of said premises theretofore had not exceeded in value $800, and that the entire property did not exceed in value $5,000; that the plaintiff skillfully and zealously cultivated the premises, but that they could not be made to yield more than $800 per year, which sum was inadequate to defray the expense of cultivation and care; and that plaintiff placed on the premises improvements of the value of $1,257 and paid taxes and assessments to the amount of $247.05; that plaintiff was not familiar with the country or with the character of the soil or with the facts as to the yield of the premises; that he believed the representations made by Pace and Woods, relied on them, and parted with his money on the faith of such representations.

It is then alleged: "Sixth. That, upon the discovery of the falsity of the said false and fraudulent representations, plaintiff demanded of the defendants that they make him whole and restore him to his position of August 20, 1907, and prior to the signing of said contract of August 20, 1907, and the payments made by him, as hereinbefore set forth, and offered to deliver said premises and everything of value received by him from said defendants, all of which said defendants failed and refused to do." In paragraph 8 plaintiff alleges that on December 23, 1909, he again demanded of Pace and Woods and the defendant corporation that the money which he had theretofore paid be returned to him, and that the contracts be canceled, and notified the defendants that he rescinded such contracts, and thereupon surrendered up the premises, improved in value to an extent greater than the value of the crops taken by him. Possibly, the allegations of paragraph 6 above can be referred in point of time to one of two dates: (1) To the time when plaintiff harvested and marketed the crop of 1907, which was some time prior to February 20, 1908; or (2) to December 23, 1909, the date mentioned in paragraph 8 above. But, if they cannot be construed as referring to either of the dates mentioned, then it cannot be gathered from the complaint when plaintiff discovered that he had been defrauded, or when he made the demand for restoration. In paragraph 4 of the complaint appears this language: "And the compelling this plaintiff, under duress and fear as herein alleged, and by threats of instituting bankruptcy proceedings against him, and by false promises made by said defendants, Pace and Woods, to secure some one to purchase said premises, which promises were made by said defendants without any hope or expectation or intention of fulfilling them or attempting so to do, but simply as an additional means of getting this plaintiff to enter into said contract with said corporation, and as additional means of further entangling this plaintiff and making it more difficult for him to secure relief." These words baffle our attempts to give them meaning. They do not appear to have any connection with the allegations preceding or following them. They do not constitute a sentence. There is not any subject, and they appear to be meaningless.

If then, the allegations of paragraph 6 above cannot be construed as referring in point of time to either date we have mentioned, the special demurrer should have been sustained, for the complaint is open to the charge of being ambiguous, unintelligible, and uncertain. As against a general demurrer, it may be that the allegations of paragraph 6 above are sufficient (Taylor v. National Bank, 6...