Root v. Childs

• Citation: 68 Minn. 142,70 N.W. 1087
• Parties: ROOT v CHILDS ET AL.
• Decision Date: 06 May 1897
• Court: Minnesota Supreme Court

68 Minn. 142

70 N.W. 1087

ROOTvCHILDS ET AL.

Supreme Court of Minnesota.

May 6, 1897.

(Syllabus by the Court.)

1. Where the obligation of a party to a contract is to pay only upon the happening of a contingency, its occurrence must be alleged in the complaint in an action for the recovery of the money. But, if payment is not to be made if a certain contingency happens, it is not necessary to allege in the complaint the nonhappening of the contingency.

2. Held, that the complaint herein complies with this rule, and that it states a cause of action.

Appeal from district court, Hennepin county; Seagrave Smith, Judge.

Action by Albert A. Root against Clarence H. Childs and others. From an order overruling a demurrer to the complaint, defendants appeal. Affirmed.

C. H. Childs, J. D. Shearer, and C. J. Cahaley, for appellants.

Dickinson & Lum, for respondent.

START, C. J.

Appeal by defendants from an order overruling their general demurrer to the complaint. The plaintiff declared upon a written contract (Exhibit A) executed by the parties hereto, which was made a part of the complaint. The contract in which the plaintiff is the party of the first part and the defendants are the parties of the second part recites that the plaintiff has acquired certain rights in and under certain letters patent of the United States (No. 521,990), covering a certain advertising device, which were conveyed to him by William P. Goodspeed by an instrument dated October 16, 1895. Then follow the covenants of the parties, which, so far as here material, are these: “That the party of the first part, for and in consideration of the sum of six thousand dollars, to be paid by the parties of the second part at the times and in the manner hereinafter provided for, has this day duly sold, assigned, transferred, and set over unto Clarence H. Childs, one of the parties of the second part, for the use and benefit of the parties of the second part, their heirs, executors, and assigns, all his right, title, and interest in, to, and under that certain agreement and license made and executed by William P. Goodspeed, of the city of Buffalo, county of Erie, and state of New York, to the said party of the first part. *** For and in consideration of said assignment the parties of the second part jointly and severally agree upon their part to pay the consideration hereinbefore expressed as follows: First. The sum of six hundred dollars, this day by mutual consent placed in the Bank of Hill Sons & Company, of Minneapolis, Minnesota, in escrow. Said amount shall be paid to the party of the first part, his heirs, executors, administrators, as soon as said agreement and license to Clarence H. Childs has been returned from the patent office duly recorded; provided, however, that the abstract of the title of said patent No. 521,990, and its various assignments, shows that the party of the first part was at the time of the recording of said agreement and license to said Clarence H. Childs the absolute owner of all the rights and privileges conveyed to him by said Goodspeed on September 16th, 1895, and entitled to convey the same. Second. The sum of five thousand and four hundred dollars on or before February 1st, 1896. *** The payments aggregating six thousand dollars shall not become due or payable if, for any cause, not attributable to the parties of the second part, their heirs, executors, administrators, or assigns, an injunction or other proceedings of law or equity should prevent the parties of the second part, their heirs, executors, administrators, or assigns, or any company or companies organized under or by virtue of any assignment of said agreement and license, from operating or working under said patent or agreement and license to said Childs; but in such case the time or times of payment under this agreement shall be extended just the length of time said parties of the second part, or their assigns, are prevented from operating or working under said patent or...