Smith v. Bradley
| Decision Date | 19 May 1914 |
| Citation | 147 N.W. 784,27 N.D. 613 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Foster County, Coffey, J.
Modified and affirmed.
Judgment entered in favor of plaintiff and appellant and against the defendants and respondents.
T. F McCue, for appellant.
This is a proper case for trial de novo in the supreme court, upon all proper evidence offered. All other evidence to which proper objection was made will not be considered. Nichols & S. Co. v. Stangler, 7 N.D. 102, 72 N.W. 1089.
Damages growing out of an alleged tortious act cannot be offset against plaintiff's damages growing out of contract, and breach thereof. Braithwaite v. Akin, 3 N.D. 365, 56 N.W. 133, and cases therein cited.
Until a deed is accepted by the grantee, no delivery can be claimed. Bank of Healdsburg v. Bailhache, 65 Cal. 327, 4 P 106.
A compromise of the matters in dispute was actually made and acted upon, and the law will not permit the parties to dispute it. Proctor v. Heaton, 114 Ind. 250, 15 N.E 21; Cobb v. Arnold, 8 Met. 403; Paxson v. Hewson, 14 Phila. 174.
A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all obligations arising from it, so far as the facts are known or ought to have been known to the person accepting. Rev. Codes 1905, § 5310; Morris v. Ewing, 8 N.D. 99, 76 N.W. 1047; Delano v. Jacoby, 96 Cal. 275, 31 Am. St. Rep. 201, 31 P. 290.
The rights of one who accepts a deed with knowledge of all attendant material facts are fixed by the deed. Hunt v. Clark, 46 Iowa 291; Houghtaling v. Lewis, 10 Johns. 296; Farmers' & M. Bank v. Galbraith, 10 Pa. 490, 51 Am. Dec. 498; Shontz v. Brown, 27 Pa. 131; Andrus v. St. Louis Smelting & Ref. Co. 130 U.S. 643, 32 L.Ed. 1054, 9 S.Ct. 645; Devlin, Deeds, 2d ed. p. 293, § 264; Citing: Bank of Healdsburg v. Bailhache, 65 Cal. 327, 4 P. 106; Harrington v. Gage, 6 Vt. 532; Mitchell v. Bartlett, 51 N.Y. 453; Jackson ex dem. Griswold v. Bard, 4 Johns. 230, 4 Am. Dec. 267; Bryan v. Swain, 56 Cal. 616; Carter v. Beck, 40 Ala. 599; Cronister v. Cronister, 1 Watts & S. 442; Fritz v. McGill, 31 Minn. 536, 18 N.W. 753; Jones v. Wood, 16 Pa. 25; Gibson v. Richart, 83 Ind. 313; Frederick v. Youngblood, 19 Ala. 680, 54 Am. Dec. 209; Smith v. Fitzgerald, 59 Vt. 451, 9 A. 604.
A grant of land only includes the property in the condition that it is in at the date of delivery and acceptance of the deed. Muscogee Mfg. Co. v. Eagle & P. Mills, 126 Ga. 210, 7 L.R.A.(N.S.) 1139, 54 S.E. 1028; Gregg v. Sayre, 8 Pet. 244, 8 L.Ed. 932; 9 Am. & Eng. Enc. Law, 2d ed. 161; United States v. LeBaron, 19 How. 75, 15 L.Ed. 526.
One who tacitly encourages an act to be done cannot afterwards exercise his legal right in opposition to such consent, where, by such acts and conduct, the other party was induced to and did change his position to his detriment. Swain v. Seamens, 9 Wall. 272, 19 L.Ed. 560.
Having gone into possession of the land, the defendant accepted it in its then condition, and was required to turn over the notes and mortgage. Cary v. Wheeler, 14 Wis. 282; Terry v. Munger, 121 N.Y. 161, 8 L.R.A. 216, 18 Am. St. Rep. 803, 24 N.E. 272.
He who by his acts or language leads another to do what he would not otherwise have done shall not subject such person to loss or injury. Dickerson v. Colgrove, 100 U.S. 578, 25 L.Ed. 618; McDonald v. Beatty, 10 N.D. 520, 88 N.W. 281; Brigham Young Trust Co. v. Wagener, 13 Utah 236, 44 P. 1030; Tolerton & S. Co. v. Casperson, 7 S.D. 206, 63 N.W. 908; Bigelow, Estoppel, p. 560.
Findings must be supported by competent evidence. Sykes v. Beck, 12 N.D. 261, 96 N.W. 844; Shambaugh v. Current, 111 Iowa 121, 82 N.W. 497; Randall v. Thornton, 43 Me. 226, 69 Am. Dec. 56; Shepherd v. Gilroy, 46 Iowa 193; Mast v. Pearce, 58 Iowa 579, 43 Am. Rep. 125, 8 N.W. 632, 12 N.W. 597.
Damages cannot be hypothecated upon mere inference or speculation. Barron v. Northern P. R. Co. 16 N.D. 277, 113 N.W. 102.
The contract itself must furnish the measure of damages. Cranmer v. Kohn, 7 S.D. 247, 64 N.W. 125; Davis v. Tubbs, 7 S.D. 488, 64 N.W. 534; Hudson v. Archer, 9 S.D. 240, 68 N.W. 541.
One is bound to minimize the damages, when he can do so by a small expenditure. Davis v. Fish, 1 G. Greene, 406, 48 Am. Dec. 387; Little v. McGuire, 43 Iowa 447; Van Pelt v. Davenport, 42 Iowa 308, 20 Am. Rep. 622.
Edward P. Kelly, for respondents.
The tort may be waived, and suit brought as upon contract. Clark, Contr. pp. 693-695.
Or damages arising out of a tortious act may be offset or counter claimed. Fleckten v. Spicer, 63 Minn. 454, 65 N.W. 926; Vallentyne v. Immigration Land Co. 95 Minn. 195, 103 N.W. 1028, 5 Ann. Cas. 212; Arentsen v. Moreland, 122 Wis. 167, 65 L.R.A. 973, 106 Am. St. Rep. 951, 99 N.W. 790, 2 Ann. Cas. 628.
Even though plaintiff's failure to perform the contract as agreed was not the result of fraud, still defendant has the right to stand on the contract as made, and is entitled to damages for failure to perform. Ibid; Lillie v. Dunbar, 62 Wis. 198, 22 N.W. 467; Seymour v. Cushway, 100 Wis. 590, 69 Am. St. Rep. 957, 76 N.W. 769; Mississippi River Logging Co. v. Miller, 109 Wis. 77, 85 N.W. 193.
The covenants and conditions of the executory contract apon which defendant B. relies are independent of the warranties in the warranty deed subsequently accepted, and are collateral covenants, and as such do not merge in the deed. Williams v. Frybarger, 9 Ind.App. 558, 37 N.E. 302; Sandford v. Travers, 40 N.Y. 140; Remington v. Palmer, 62 N.Y. 31; Sage v. Truslow, 88 N.Y. 240; Bull v. Willard, 9 Barb. 641; Cox v. Henry, 32 Pa. 18; Selden v. Williams, 9 Watts, 9; Atwood v. Norton, 27 Barb. 638.
The provisions of the contract not included still remain in force. Lehman v. Paxton, 7 Pa. S.Ct. 259; Close v. Zell, 141 Pa. 390, 23 Am. St. Rep. 296, 21 A. 770; Walker v. France, 112 Pa. 203, 5 A. 208; Brinker v. Byers, 2 Penr. & W. 528; Sessa v. Arthur, 183 Mass. 230, 66 N.E. 804; Minor v. Edwards, 12 Mo. 137, 49 Am. Dec. 121; German American Real Estate Co. v. Starke, 84 Hun, 430, 32 N.Y.S. 403; Davis v. Lee, 52 Wash. 330, 132 Am. St. Rep. 973, 100 P. 752.
GOSS, J. BURKE, J., not participating.
Smith brings this action to foreclose a purchase-price real-estate mortgage. May 12, 1906, he gave Bradley an option contract in writing on a section of land, which was accepted. Smith then refused to perform under the contract, whereupon specific performance was brought, and speedily went to judgment in Bradley's favor October 17, 1906. Therein assignments of certain school leases, stipulated for in the option, were treated as collateral to the contract of purchase, and Bradley was permitted to receive performance from Smith without such assignments. The failure to assign these leases is here the basis for a claim of damages by Bradley. Smith appealed from the judgment in specific performance, but his appeal was dismissed. February 17, 1907, pending that appeal, Bradley secured possession of the land sold, and has since retained it. After the appeal was dismissed the attitude of the parties changed, and Smith became anxious for specific performance of the decree, and to secure possession of the purchase-price mortgage and notes, but Bradley refused to sanction or permit delivery of them until Smith should pay him for the damages now sought to be recovered, and remained in possession of both the farm and his notes and mortgage until 1909. Smith then served Bradley with notice that, if the decree was not at once complied with, Smith would treat further noncompliance as a waiver by Bradley of all benefits under that decree. Smith then sued Bradley to quiet title to the land in Smith, as against the decree, claiming Bradley to have forfeited his rights thereunder. The answer set up title in Bradley under the judgment decreeing specific performance. No issue of damages was raised. Negotiations then had resulted in a written stipulation dismissing the action to quiet title. Specific performance as to the section of land was then had, Bradley accepting the deed, and Smith the purchase-price mortgage and notes June 10, 1909. In November following, Smith brings foreclosure of this mortgage. Bradley answers, reciting the circumstances under which the notes and mortgages were delivered, and that the same was in performance of the option contract, and seeks by recoupment to recover the sum of over $ 4,000 claimed as his damages because Smith failed to deliver his assignments of school leases and fencing on the school land, and for Smith's removal of and injury to buildings and improvements on the land so deeded to Bradley. Judgment of foreclosure was awarded plaintiff for the sum of $ 9,543.60, less damages $ 2,020.99, allowed Bradley as an offset. From this judgment Smith appeals. Retrial is demanded of such award of damages.
The first question raised is as to whether Bradley, after the settlement of the action to quiet title, and after his acceptance of Smith's deed and his delivery to Smith of this mortgage, under the decree of specific performance, now can assert any claim to damages, as against Smith's foreclosure for the purchase price.
No issue of damages has ever been involved in any previous action. Undoubtedly, had the damages accrued prior to the trial of the action of specific performance, as to which there is no proof, inasmuch as possession was taken four months later and damages were then first ascertained, Bradley could have litigated damages in the action of specific performance, had he so desired. Waterman on Specific Performance of Contracts, § 5: "A person may be entitled to damages for violations of the contract up to the time of bringing the...
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