Saint v. Beal
| Decision Date | 24 February 1923 |
| Docket Number | 5040. |
| Citation | 213 P. 248,66 Mont. 292 |
| Parties | SAINT ET AL. v. BEAL. |
| Court | Montana Supreme Court |
Appeal from District Court, Sanders County; James M. Self, Judge.
Suit by James C. Saint and others against H. J. Beal. Judgment for defendant, and plaintiffs appeal. Reversed, and cause remanded.
A. S Ainsworth, of Thompson Falls, for appellants.
Harry H. Parsons and Geo. G. Witter, both of Missoula, for respondent.
The complaint in this action alleged that at all times therein mentioned plaintiffs were the owners of a certain described tract of land located in Sanders county, Mont.; that on October 14, 1920, by a contract in writing, they agreed to sell and convey this land to the defendant for the sum of $6,000, and that the defendant agreed to purchase it and to pay said amount therefor in installments, to wit, $500 at or before the execution of the contract, $500 on the 1st day of January, 1921, and the balance on specified dates until the whole amount was paid, and that all deferred payments should bear interest at the rate of 7 per cent. per annum. The contract, a copy of which was attached to the complaint contained this provision:
"And in case of the failure of said party of the second part to make either of the payments or interest thereon or any part thereof or perform any of the covenants on his part hereby made and entered into, then the whole of said payments and interests shall at the election of said first parties become immediately due and payable."
It is further alleged:
"That defendant has failed to pay the sum of $500, which became due and payable on January 1, 1921, and although demand has been made upon him by the plaintiffs for the payment of said sum he has failed and refused, and still fails and refuses, to pay said sum, or any part thereof, and has declared his intention of not performing said contract,"
--and that plaintiffs had elected to declare the entire balance of the purchase price and interest to be due; that there was due and unpaid from defendant the sum of $5,500, with interest thereon from October 14, 1920, at 7 per cent. per annum, which defendant refused to pay; that they were ready and willing to execute and deliver a good and sufficient deed for the premises to the defendant upon payment of the amount due, together with the costs of the action. The prayer was for $5,500, with interest thereon at 7 per cent. per annum from October 14, 1920.
The defendant filed an answer, admitting the execution of the contract, and alleged that at the time the contract was executed, and as a part of the same transaction wherein the defendant purchased the land and entered into the contract, the plaintiffs had made certain false and fraudulent representations to him with reference to the condition of the land and the barn located thereon, and "that as soon as the defendant learned said fraud he demanded a return of said purchase money so paid to plaintiffs, and tendered and offered to return, and still offers to return, all that he had received under said contract and purchase, and to transfer and convey the same to the plaintiffs, and has rescinded and does rescind said contract," and demanded a return of the $500 paid, and other relief. The allegations of fraud and misrepresentation set forth in the answer were put in issue by a reply.
The case came on for trial on January 27, 1922, and a jury was duly impaneled "as advisory to the court," whereupon the plaintiffs tendered in court and filed with the clerk a deed conveying the land in question to the defendant. When the plaintiffs sought to introduce testimony, the defendant interposed an objection thereto on the ground that the complaint did not state a cause of action, which objection was sustained. Thereupon the defendant dismissed his counterclaim, and judgment for costs was entered against the plaintiffs, from which judgment this appeal was taken.
If the allegations of a complaint warrant a recovery by plaintiff in any amount and upon any admissible theory, it will withstand a general demurrer or an objection to the admission of evidence. Hurley v. Great Falls Baseball Ass'n, 59 Mont. 21, 195 P. 559.
Plaintiffs state in their brief that this is a suit for the specific performance of a contract, and this theory apparently was adopted by the court at the beginning of the trial, as a jury was impaneled to try the issues "as advisory to the court."
The questions presented for consideration are: (1) Upon the breach of the contract by the defendant in failing to make the payments therein provided, had the plaintiffs a right to bring an action to compel him to specifically perform the contract; and, if so, (2) are the allegations of the complaint sufficient to entitle them to that relief?
1. Beyond question, if defendant had paid or tendered the full amount of the purchase price of the land he could have maintained an action to compel the plaintiffs to...
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