Ross v. Page
| Decision Date | 10 December 1902 |
| Docket Number | 6731 |
| Citation | 92 N.W. 822,11 N.D. 458 |
| Parties | WILLIAM ROSS v. MORTON PAGE |
| Court | North Dakota Supreme Court |
Appeal from district court, Cass county; Pollock, J.
Action by William Ross against Morton Page. Judgment for plaintiff and defendant appeals. Affirmed.
Affirmed.
W. C Resser (Morrill & Engerud, of counsel), for appellant.
J. W Tilly and Robert M. Pollock, for respondent.
The plaintiff brings this action to compel the specific performance of a contract for the sale of 80 acres of land situated in Cass county. The complaint alleges that one Foley entered into a written contract with the defendant, Morton Page, by which Page agreed to sell him said land under the terms mentioned in said contract, and that Foley duly assigned said contract to the plaintiff; that all the provisions of such contract have been fully performed by said Foley in part, and by the plaintiff as to the balance; that the plaintiff has tendered to the defendant all sums due under such contract, and demanded a deed for such land pursuant to the provisions of the same; that such tender was refused; and that the plaintiff thereafter deposited the amount of such tender in the Fargo National Bank, subject to the defendant's order. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and the same was overruled, and leave granted to serve an answer. The answer was served, and, after admitting the allegations of the complaint as to the contract, amount due, the tender, refusal to accept it, the demand for a deed, and the refusal to deliver it, denies generally the allegations of said complaint, and further alleges that there is a defect of parties defendant in the action, for the reason that Foley, the vendee and assignor of the contract, is not made a party; that said Foley did not assign said contract to the plaintiff absolutely, but as security only; and that the rights of all the parties cannot be adequately determined unless said Foley be made a party. The trial court made findings of fact and conclusions of law in favor of the plaintiff, and ordered that the defendant specifically perform the contract, by executing and delivering a deed of the land to the plaintiff. Judgment was duly entered on said findings, and the defendant appeals from such judgment, and requests a review of all the issues in this court, as provided by section 5630, Rev. Codes, under which the case was tried.
The contract on which the action is based contains the following provisions, among others usually found in contracts commonly called crop or farm contracts: "That the party of the second part hereby agrees with the said party of the first part as follows: That the premises above described are to be occupied and improved continuously by him, and he hereby agrees to farm said premises in a thoroughly first-class and farmerlike manner, according to the usual rules of husbandry, and to the best interest of the said party of the first part; in the year 1898, and prior to the 25th day of October, 1898, to plow back in a thoroughly first-class and farmerlike manner all the land now in stubble, and make the same ready for crop in the spring of 1899; in the year 1899 to sow the said land herein described to wheat, using therefor good, sound, clean seed wheat, free from mustard, Russian cactus, or other noxious weed seeds, and to keep the land clean and free from mustard, Russian cactus, French weed, or other noxious weed seeds, and to use due care and diligence in the selection of said seed wheat, and, if the same contains any smut, to properly bluestone, or otherwise use preventatives against smut in the seed wheat, in the spring, and before seeding." The contract then provides for the performance of the same conditions in reference to the seeding of the land during the year 1900, and all subsequent years, while the contract remains in force. The contract also contains this provision: "No assignment or pledge of this contract by the said party of the second part shall be valid or binding without the written consent of the party of the first part." The assignment from Foley to the plaintiff contains the following clauses:
The defendant first insists that Foley, the assignor of the contract, was a necessary party in the action, and should have been brought in on an order from the court. It must be borne in mind that the defendant demurred to the complaint, and based his demurrer on the ground alone that the complaint did not state facts sufficient to constitute a cause of action. This ground of demurrer would not reach a defect of parties defendant. Beyer v. Town of Crandon, 98 Wis. 306, 73 N.W. 771; Tennant v. Pfister, 51 Cal. 511. Section 5267, Rev. Codes, provides that the objection that there is a defect of parties must be taken by demurrer, if the defect appears upon the face of the complaint. If it does not so appear upon the face of the complaint, it may be raised by answer. If the defect of parties appears upon the face of the complaint, and the objection thereto is not raised by a demurrer, the defendant shall be deemed to have waived the objection, except as to the jurisdiction of the court, and that the complaint does not state facts sufficient to constitute a cause of action. Such is the accepted construction of the Codes of other states containing provisions like sections 5267 to 5272, inclusive, of the Revised Codes. See, also, Sykes v. Bank, 2 S.D. 242, 49 N.W. 1058, and cases collected in 15 Enc. Pl. & Prac. p. 750. Without admitting or deciding that the question of the defect of parties is properly to be determined on an appeal under section 5630, Rev. Codes, it conclusively appears that all objections to the complaint on that ground were waived by not demurring. The court did not, therefore, err in striking from the answer the allegation as to defect of parties, on motion duly made by the plaintiff.
The defendant contends that the judgment of the district court was erroneous and should be reversed on the evidence, and relies on the following propositions of law as sustaining such condition, which are given about as stated by him: (1) The contract could not be assigned or pledged without Page's consent; (2) Page had the right to insist on Foley's personal management of the farm, and insist on dealing with him alone; (3) the purchase price was not payable in full at any time at the option of the vendee; (4) Page could not be required to accept payment, or any other or different payment, of the purchase price, than that stipulated in the contract, but had the right to have the unpaid portion of the purchase price remain outstanding as an investment until paid in the manner contemplated by the contract; and (5) the assignment, on its face, was a pledge or mortgage, and did not confer absolute authority on Page to deliver the deed, in view of the fact that it was not an absolute assignment, and that evidence was not admissible in this action to show that it was an absolute assignment, as a matter of fact. It is urged that the contract could not be assigned without defendant's consent in writing, for two reasons: First, because the contract prohibited such assignment, in direct terms; second because the contract shows by its terms that it was made in reliance on receiving Foley's personal services, skill, and judgment in the management and farming of the land; that a vendor has the absolute right to dictate as to the person to whom he shall sell, and who shall manage his property. On reviewing the evidence, we think it is conclusively shown that the defendant cannot now be heard to raise either of these objections to the giving of a deed by him. As questions of law, we shall not determine the questions as raised, as to do so is rendered unnecessary by the acts and conduct of the defendant in relation to the contract. To understand the ground of our decision, it will be necessary to state the evidence as to what was done by the parties since the contract was entered into, in relation to it. In 1899 Foley farmed the land, and on September 1, 1899, the sum of $ 806.35, was paid on the contract by him. The evidence does not show whether...
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