State ex rel. Robins v. Clinger

• Decision Date: 20 December 1951
• Docket Number: No. 7806,7806
• Citation: 72 Idaho 222,238 P.2d 1145
• Parties: STATE ex rel. ROBINS, Governor, et al. v. CLINGER.
• Court: Idaho Supreme Court

Page 1145

238 P.2d 1145

72 Idaho 222

STATE ex rel. ROBINS, Governor, et al. v. CLINGER.

No. 7806.

Supreme Court of Idaho.

Dec. 20, 1951.

Robert E. Smylie, Atty. Gen. and J. R. Smead, Asst. Atty. Gen., for appellant.

A. A. Merrill, Idaho Falls, and T. W. Smith, Rexburg, for respondent.

PORTER, Justice.

On March 8, 1951, appellant filed its amended complaint in this action. Respondent filed a general demurrer to the amended complaint. After hearing thereon, the demurrer to the amended complaint was sustained and appellant given 20 days within which to amend its amended complaint. After the expiration of the 20 days, and appellant having indicated it intended to stand on the amended complaint, a judgment of dismissal was entered. From such judgment of dismissal, appellant has appealed to this court.

The material part of appellant's amended complaint is as follows:

'II

'That plaintiff was, on September 21, 1949, the owner in fee simple of the following described tract of public school land situated in Madison County, State of Idaho:

E. 1/2 Sec. 26, Twp. 5 N., Rge. 42 E.B.M. containing 320.0 acres;

that the State Board of Land Commissioners, acting on the purchase application of Zella M. Clinger, defendant, authorized sale by public auction of the above land in accordance with the statutes in such case made and provided; that notice of the sale of the above described land was advertised in four (4) consecutive issues of 'The Rexburg Standard'; that said sale was held, as authorized and noticed, at the Madison County Courthouse in Rexburg, Idaho, at two o'clock P.M., Mountain Standard Time, on the 21st day of September, 1949, on the terms authorized and advertised by the said State Board of Land Commissioners, and announced at the commencement of the sale; and that these terms were ten percent (10%) of the purchase price and interest at four percent (4%) on balance of principal for remainder of year would be paid in cash on day of sale by the purchaser, and the remainder of the purchase price would be paid in forth (40) equal installments with interest at four percent (4%) on the unpaid balances.

'III

'That Zella M. Clinger, the defendant herein, was, on September 21, 1949, a married woman, and at all times mentioned herein and in each and all transactions mentioned herein, was acting on and in her own behalf, and for the use and benefit of herself and her own separate property.

'IV

'That at the said sale on September 21, 1949, Zella M. Clinger, the defendant, bid for, and said bid being the maximum bid was accepted by the State Land Commissioner acting as selling agent for the State Board of Land Commissioners, and when defendant's bid as aforesaid was accepted defendand became the purchaser of all the above described property for the price of Thirty-five Thousand Two Hundred One Dollars ($35,201.00).

'V

'That the said defendant, at the sale as aforesaid, wrote a personal check, signed by Zella M. Clinger, the defendant, individually, in the amount of Three Thousand Eight Hundred Sixty-three Dollars and Forty-three Cents ($3,863.43) which covered the ten percent (10%) down-payment on principal plus interest and costs and which was accepted by the said Land Commissioner as the payment, called for by the notice of sale, to be made on the day of sale.

'VI

'That the defendant thereafter defaulted on her agreement to purchase the land aforesaid by stopping payment on the check and by informing the said State Board of Land Commissioners that she would not carry out her contract to purchase the above described property, such notice being given to said Board by a letter mailed to said Board at its principal place of business at Boise, Idaho.

'VII

'That, as a consequence of defendant's default, the said State Board of Land Commissioners in pursuance of the statutes in such case provided again aughorized the sale of the above described property; that after the notice of this State land sale had been duly arvertised, as provided by law, the above described property was put up for resale at public auction at the Courthouse in Rexburg, Idaho, at two o'clock P.M., Mountain Standard Time, on the 16th day of November, 1949, on the same terms as set forth in Paragraph II of this Complaint.

'VIII

'That the defendant was notified by the advertisement as aforesaid andby letter sent to the defendant by the said State Land Commissioner under date of October 13, 1949, of the date, time and place at which the above described land was to be resold at public auction; that at the said resale, T. W. Smith, Jr. made the high bid, which bid was the maximum bid and was an acceptable bid and which bid was accepted; and the said T. W. Smith, Jr. thereupon becamse the purchaser of all of the above described property for the price of Seven Thousand Four Hundred Dollars ($7,400.00).

'IX

'That demand was made on the defendant by letter from the Attorney General, dated January 23, 1950, sent by registered mail, that she reimburse the State of Idaho, acting in behalf of the Public School Endowment Fund, to which Endowment the above described lands belonged, for the damage suffered by it, as a consequence of her default, in the sum of Twenty-seven Thousand Eight Hundred One Dollars ($27,801.00): the difference between the defendant's bid of Thirty-five Thousand Two Hundred One Dollars ($35,201.00), which was accepted by the State at the original auction sale, and the amount at which the land was resold at the second sale to T. W. Smith, Jr., said amount being Seven Thousand Four Hundred Dollars ($7,400.00).

'X

'That defendant has not paid said deficiency nor any part thereof and refuses to pay said deficiency or any part thereof to plaintiff's damage in the sum of Twenty-seven Thousand Eight Hundred One Dollars ($27,801.00).

'Wherefore, plaintiff prays judgment against the defendant for the sum of Twenty-seven Thousand Eight Hundred One Dollars ($27,801.00) and costs of suit and for such other and further relief as to the Court may seem just and equiable.'

Appellant's assignments of error present only the question of whether the trial court erred in sustaining the general demurrer to the amended complaint and entering judgment of dismissal. It is error to sustain a general demurrer to a complaint if the facts therein alleged are sufficient to constitute a cause of action entitling plaintiff to any relief against defendant. Paulsen v. Krumsick, 68 Idaho 341, 195 P.2d 363; Eastern Idaho Loan & Trust Co. v. Blomberg, 62 Idaho 497, 113 P.2d 406; Bicandi v. Boise Payette Lumber Co., 55 Idaho 543, 44 P.2d 1103.

'A complaint based on contract is generally held to be sufficient if it states the making of the contract, the obligations thereby assumed and the breach. The contract in such case contains the primary right of the plaintiff. In the obligation assumed by the defendant is found his duty and his failure to comply with the duty constitutes the breach. When these statements are supplemented with a statement of the amount claimed and a prayer for the judgment, the complaint is complete, and is not one which may be subject to a general demurrer.' Stone v. Bradshaw 64 Idaho 152, 128 P.2d 844, 846. The statutes provide the manner and method of the sale to public school lands. Section 58-313, I.C., is as follows:

'The state board of land commissioners may at any time direct the sale of any state lands, in such parcels as they shall deem for the best interests of the state. All sales of state lands shall be advertised in four consecutive issues of some weekly newspaper in the county in which the land is situated, if there be such paper, if not, then in some newspaper published in an adjoining county, and in such other paper or papers as the board may direct. The advertisement shall state the time, place and terms of sale, a description of the land and value of the improvements, if any, thereon, and the minimum price per acre of each parcel as fixed by the board, below which no bid shall be received: provided, that sales of state lands shall only be made to citizens of the United States and to those who shall have declared their intentions to become such. If the required sum be not paid forthwith by the highest bidder any lands upon which such payment shall not be made may be immediately reoffered at public sale as before. If any land be sold on which surface improvements have been made by a lessee, or by a former purchaser whose certificate of purchase has for any reason been cancelled, said improvements shall be appraised under the direction of the state board of land commissioners. When lands on which improvements have been made, as above, are sold, the purchaser, if other than the owner or former owner of said improvements, shall pay the appraised value of said improvements to the owner thereof, or to the former purchaser who placed the same thereon, taking a receipt therefor, and shall deposit...