Paynesville Land Company v. Grabow
| Decision Date | 31 October 1924 |
| Docket Number | 24,121 |
| Citation | 200 N.W. 481,160 Minn. 414 |
| Parties | PAYNESVILLE LAND COMPANY v. WILLIAM A. GRABOW |
| Court | Minnesota Supreme Court |
Action in the district court for Stearns county to recover $10,275. Defendant's demurrer to the complaint was overruled. Defendant answered and the case was tried before Roeser, J who made findings and ordered judgment in favor of plaintiff. From an order denying his motion for a new trial defendant appealed. Affirmed.
Trial by jury waived by plaintiff.
1. Where plaintiff's counsel on the call of the trial calendar acquiesces in a case being marked for the court calendar and thereafter requests resetting of the case as a court case, and later consents to the case being set as the last case on the court calendar, he waives a jury trial.
Complaint construed.
2. Complaint construed as one for the recovery of money only and not one for specific performance, and, as such, it stated a cause of action to recover an intermediate and independent payment maturing on a contract for deed.
When vendee cannot rescind on ground vendor is not record owner.
3. A vendor has good title justifying his entering into a contract for deed when he holds a valid subsisting contract for deed from one who also holds such contract with the fee owner; and, where these parties are willing to carry out their contracts, the vendee cannot rescind because the vendor is not the record owner in fee.
Vendor may make final payment from purchase price.
4. Under such circumstances vendor may discharge his final payment from the purchase price which he receives.
Contract enforceable -- description sufficient.
5. Record examined, and held that: (1) Defendant waived the delivery of the abstract of title; (2) defendant waived a provision in the contract for deed requiring vendor to make record title in his own name within 60 days; (3) an earnest money contract for deed made by a member of a copartnership covering land owned by the members of the copartnership in their individual names may be enforced by the copartnership; (4) description of land in contract was under the circumstances sufficiently definite.
Albert Hauser, for appellant.
R. B. Brower, for respondent.
On May 29, 1920, an earnest money contract was made by defendant with the Paynesville Land Company by George J. Andrews, which contract in part is as follows: to-wit:
"EARNEST MONEY CONTRACT OF SALE.
Paynesville, May 29, 1920.
which we have this day sold and agreed to convey to said Wm. A. Grabow for the sum of Twenty-two Thousand two hundred seventy-five Dollars ($22,275.00), on terms as follows, viz:
"One thousand Dollars ($1000.00) in hand paid as above and
$1000.00 Oct. 15, 1920
$10,275.00 March 1st, 1921
$10,000.00 to be carried in a first mortgage at 6% for 5 years from March 1st, 1921, payable on or before the dates as above named, or as soon thereafter as a Warranty Deed conveying a good title to said land is tendered, time being considered of the essence of this Contract.
"
This action is brought to recover the $10,275 maturing on March 1, 1921. The complaint sets forth the contract in full and seeks only a money judgment.
Defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. It was overruled. Defendant answered, claiming that plaintiffs on May 29, 1920, were not the owners of the land and also claiming that the abstract of title was not furnished as specified in the contract. He also pleaded a counterclaim asserting that, because of the delinquency of plaintiffs in reference to their ownership and nondelivery of the abstract, he had a right to and did rescind the contract, and he sought to recover the payments which he had made. The reply says that defendant affirmed the contract.
The case was tried to the court and findings were made in favor of plaintiffs. Defendant moved for amended findings or for a new trial and now appeals from the order denying this motion.
Appellant claims that he was entitled to a jury trial. His counsel lived 80 miles from the place of trial. He had a local attorney look after the setting of the case. On the call of the calendar all acquiesced in the case going to the court calendar. It was then reset for trial as a court case at different times at the request of counsel for both sides. Thereafter the representative of appellant consulted the court on different occasions inquiring as to the time when the case could be set for trial. It was finally set for trial as a court case on the last day of the term pursuant to an agreement of counsel. When the case was called for trial, appellant's counsel objected to the case being tried to the court and not to a jury. The court properly held that defendant waived a jury. 2 Dunnell, Minn. Dig. § 5234.
The demurrer and the objection to the sufficiency of the complaint necessitate a construction of the complaint. If the action was an equitable action for specific performance, it would require an allegation of the performance of any condition precedent on the part of plaintiffs. The complaint was not intended as an action in equity, but it is purely and clearly an action at law to recover a certain specified amount which was due according to the terms of the contract, and the defendant was at liberty to plead in his answer, as he later did, those things which he claimed justified his nonpayment. Whether then, in fact, the complaint is sufficient in an action at law requires the further consideration of the inquiry as to whether it is an action to recover a final payment upon the purchase price of the land within the doctrine of Freeman v. Paulson, 107 Minn. 64, 119 N.W. 651, 131 Am. St. 438, or is it an action to recover an intermediate and independent payment? If this action is to compel full performance on the part of the vendee which would require payment and conveyance as simultaneous acts, then the vendor must be both able and ready to convey marketable title and the complaint should so allege. In such an action the complaint would be insufficient. But, if the complaint is merely to recover an intermediate payment, it is sufficient. Duluth L. & L. Co. v. Klovdahl, 55 Minn. 341, 56 N.W. 1119; Loveridge v. Coles, 72 Minn. 57, 74 N.W. 1109; True v. Northern Pac. Ry. Co. 126 Minn. 72, 147 N.W. 948; Noyes v. Brown, 142 Minn. 211, 171 N.W. 803; Smith v. Kurtzenacker, 147 Minn. 398, 180 N.W. 243; Benjamin v. Savage, 154 Minn. 159, 191 N.W. 408.
The payment of the $10,275 is not the only thing the appellant has to do in order to put himself in a position to be entitled to demand the deed. There is another $10,000 of the purchase price to be considered. The contract says: "$10,000.00 to be carried in a first mortgage at 6% for 5 years from March 1st, 1921." This language must necessarily be construed to mean that the appellant must execute and deliver such mortgage simultaneously with receiving title. While this act was due on the same day as the maturity of the money which this action seeks to recover, this action in no way involves the obligation of the appellant to give the mortgage which must be given as a condition to his right to title. It follows that this action is brought to recover an intermediate payment. The complaint was sufficient.
On February 27, 1921, appellant learned that the title to the land did not stand of record in the name of plaintiffs, but was in the name of Josephine Gunder. He then notified plaintiffs that he would drop the deal. He claimed the right to do this under the provision in the contract specifying the 60 days. He asserts that this contract died on July 29, 1920, because the title was not in the meantime in the name of plaintiffs. The language of the contract is peculiar and is unusual. It requires: First, that the agreement shall be void if the title is not good and cannot be made good within 60 days; second, that the title must be good in the name of vendor within 60 days and then if vendee refuses to accept the same he forfeits the initial payment of $1,000.
Did the vendors at the time for performance have good title? On...
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