Raasch v. Goulet
| Decision Date | 28 February 1929 |
| Citation | 223 N.W. 808,57 N.D. 674 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Barnes County, Cole, J.
Affirmed.
Lemke & Weaver, for appellant.
"The Statute of Limitations does not begin to run against an action for money had and received where the suit is brought by a purchaser of land for the sole purpose of recovering payment thereon under a contract violated by the defendant until the contract has been terminated." Thiele v Carey (Neb.) 123 N.W. 442; 27 R.C.L. §§ 376 384.
"A court of equity having acquired jurisdiction over the subject-matter of a controversy will retain it and do complete justice to the parties." Coykendall v Kellogg, 50 N.D. 857, 198 N.W. 472; Schmidt v Johnstone, 31 N.D. 53, 153 N.W. 293.
"A petition disclosing by alleged facts that the defendant received a payment of purchase money on land contract which was terminated under circumstances showing that in justice and fairness the money ought to be returned to the plaintiff, states a cause of action." Thiele v. Carey (Neb.) 123 N.W. 442.
"Rescission by vendor and ouster by vendee gives the latter an action for money had and received without consideration." Davis v. Strobridge (Mich.) 6 N.W. 205.
"When the defendant deeded away the property under the circumstances stated, the plaintiff had a right to treat the contract as rescinded." Weaver v. Atcheson, 32 N.W. 436.
"When the vendor of land under a contract of sale sells and conveys such lands to another and is unable to comply with the terms of his contract, the vendor is entitled to recover back any payments made on the purchase." Durlin Trust Co. v. Augustine, 195 N.W. 172.
"In actions to determine adverse claims to real estate . . . the adjudication should dispose of all conflicting claims arising under the pleadings . . . If this is not done, the purpose of the action is not accomplished, and the conflicting rights of the parties are not in fact determined." Brown v. Hodgson, 15 N.D. 1, 105 N.W. 941; Fredrickson v. Davis (Iowa) 110 N.W. 611; 27 R.C.L. § 377.
"The vendor, as a general rule, in case he has received a part of the purchase money, must return or offer to return it, when he rescinds a contract." 27 R.C.L. § 476.
Combs, Ritchie, & Hanchett, for respondent.
"The assignment is of equal rank with the contract, and grants to the assignee the same but no greater rights as respects the enforcement of the contract than were vested in his assignor." Greenfield v. Taylor (1919) 141 Minn. 399, 170 N.W. 345.
"If the party seeking a specific performance has been guilty of gross laches, or has been inexcusably negligent in performing the contract on his part, or if there has, in the intermediate periods, been a material change in circumstances, affecting the rights, interests, or obligations of the parties, in all such cases, courts of equity will refuse to decree any specific performance, upon the plain ground that it would be inequitable and unjust." Taylor v. Longworth, 14 Pet. 172.
"A court of equity will not extend the extraordinary relief afforded by specific performance to a purchaser of real estate who has been grossly negligent of his rights or has abandoned his contract, where the vendor, induced by his action, has entered into obligations inconsistent with the performance of the contract." Mahon v. Leech, 11 N.D. 181, 90 N.W. 807.
"Unequivocal acts by the purchaser, which are inconsistent with the continuance of the contract, constitute a rescission thereof." 39 Cyc. 1431.
"Cancellation, rescission, surrender up, and discharge of instruments are one and the same remedy; the degree for cancellation generally includes a direction for surrender up, and, if necessary, for discharge of record." Herrington v. Hubbard, 1 Ill. 569; 6 Cyc. 285.
"In accordance with the rule applicable to contracts generally, the rescission of an entire contract for the sale of land, whether by vendor or purchaser, must be in toto." 39 Cyc. 1354.
Phelps v. Western Realty Co. (Minn.) 94 N.W. 1085; Hanson v. Hanson (Neb.) 90 N.W. 208; Noyes v. Belding (S.D.) 62 N.W. 953; Cromwell v. Sac Co. 94 U.S. 351, 24 L. ed. 195; Tuska v. O'Brien, 68 N.Y. 446.
The defense of res judicata may be shown in evidence without being specifically pleaded. Kain v. Garnaas, 27 N.D. 292, 145 N.W. 825.
In an action for conversion the plaintiff must recover on the strength of his own title and not on the weakness of his adversary. Raasch v. Goulet, 52 N.D. 707, 204 N.W. 338.
McKenna, District J. Burke, Ch. J., and Christianson, Birdzell, and Burr, JJ., concur. Mr. Justice Nuessle did not participate; Honorable Geo. M. McKenna, Judge of Third Judicial District, sitting in his stead.
OPINIONTwo different phases of this controversy have previously been before this court for adjudication. See Raasch v. Goulet, 49 N.D. 936, 194 N.W. 380, and Raasch v. Goulet, 52 N.D. 707, 204 N.W. 338.
Following are the principal facts:
On October 15, 1915, the plaintiff, Casper F. Raasch, of Ashland, Nebraska, was the owner of a tract of land known as the Christian Ranch, comprising 814 acres, situate in Saunders and Cass counties, Nebraska, and encumbered for $ 28,500. On this date he entered into a preliminary agreement with the Lund Land Company, a corporation, of Valley City, N.D., by which Raasch agreed to sell and convey to the Lund Land Company these 814 acres at the agreed price of $ 145 per acre, or a total consideration of $ 118,030, which sum less the encumbrance of $ 28,500, made a net cost to the Land Company of $ 89,530. The Lund Land Company agreed that if after examination of the plaintiff's Nebraska ranch it decided to accept the property, it would convey to Raasch 2580 acres of land in Barnes county, N.D., at the agreed price of $ 65 per acre, or a total consideration of $ 167,700, which amount less Raasch's equity in the Nebraska land of $ 89,530 and the sum of $ 70 allowed Raasch for expenses, left a balance due and owing from Raasch on the property thus to be exchanged of $ 78,100, which he agreed to pay by turning in one-half of the crops raised on the Barnes county land each year; this sum to draw interest at 6% from March 1, 1916.
On the said 15th day of October, 1915, a supplemental agreement was entered into between C. F. Raasch and the Lund Land Company, by which the Lund Land Company agreed to dispose of one and one-half sections of the Barnes county land for a sum equal to the amount paid for same by Raasch, and it agreed to sell the land on or before one year from date and to make full and complete settlement for same on or before March 1, 1917, and covenanted that if it failed to dispose of the land within the time mentioned the company would itself purchase the land at said price, and would pay Raasch for his equity in said land in cash and assume all indebtedness against said lands.
The same evening a contract of employment was entered into, under which Raasch was employed by the Lund Land Company at a salary of $ 1,500 a year, as an agent of the company, commencing April 1, 1916. The employment contract provided that Raasch should move his family to Valley City and work from the office of the Lund Land Company in search of land buyers, etc.
On the date of these contracts, the Lund Land Company was not the owner of the Barnes county land, and had no interest in the same whatever, and did not even have it listed for sale, but it was at that time the sole property of the defendant, George O. Goulet, and he had not in any manner authorized the Lund Land Company to act for him in negotiating a sale or trade for those lands.
On February 16, 1916, the defendant, George O. Goulet, of Oriska, in Barnes county, N.D., entered into a contract with the Lund Land Company, agreeing to convey 3220.41 acres of land in Barnes county, which included the 2580 acres the Lund Land Company had agreed to exchange with Casper F. Raasch on the 15th day of October, 1915. The consideration for the transfer was $ 120,765, upon the following terms: $ 2,000 in cash at the time of the contract; $ 1,000 on February 24, 1916; $ 5,000 March 10, 1916; $ 12,765 on April 1, 1916; and the balance of $ 100,000, at 6% interest, to be paid by delivery of one half of the crops each year. Such contract provided that same might be cancelled upon thirty days' notice in case of failure to make the payments covenanted, and that no assignment of the contract or the premises should be valid without the written consent of the vendor.
On March 1, 1916, Casper F. Raasch moved to Valley City, N.D., and entered the employ of the Lund Land Company as a salesman and solicitor at a salary of $ 1,500 a year.
On March 30, 1916, Raasch and his wife executed a conveyance of their Nebraska land to one Warner, an employee of the Lund Land Company. This was done, as represented by the company to Raasch, merely as a convenience in procuring a loan. Warner, with the consent of Raasch, mortgaged the Nebraska land to one John W. Webber, of Ottumwa, Iowa, to secure a loan of $ 35,000. It was explained to Raasch that out of the money so to be obtained the $ 28,500 mortgage on his Nebraska land would be paid off and the remainder would be paid to Goulet on the North Dakota land. Webber, however, only advanced $ 5,000 upon this mortgage, and no additional sum was ever advanced by him.
On March 31, 1916, Raasch and the Lund Land Company made a new contract covering the transaction of exchange of lands...
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