Stevens v. Trafton

• Decision Date: 13 February 1908
• Citation: 93 P. 810,36 Mont. 520
• Parties: STEVENS v. TRAFTON.
• Court: Montana Supreme Court

93 P. 810

36 Mont. 520

STEVENS v. TRAFTON.

Supreme Court of Montana

February 13, 1908

Appeal from District Court, Valley County; Jno. W. Tattan, Judge.

Action by C. H. Stevens against R. M. Trafton for specific performance of an agreement to convey land. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

T. E Crutcher, for appellant.

Hurd & Lewis, for respondent.

SMITH J.

In the district court of Valley county the plaintiff filed his complaint, wherein he alleged: "(1) That on the 21st day of July, 1903, he made a certain agreement with defendant whereby defendant agreed to sell, and plaintiff agreed to buy of defendant, the east half of lot 3 in block 6 of the Trafton addition to Malta, in the county of Valley, state of Montana, for which he agreed to pay defendant the sum of $100, and at the same time plaintiff agreed to buy from defendant certain lumber which he would need for building a house on said lot. By the terms of said agreement plaintiff was to pay defendant $50 cash, $50 in three months, and the balance, whatever it might be, in six months, which included the price of the lumber to be purchased, and when these payments were made defendant agreed to make to plaintiff a warranty deed to said east half of said lot. (2) That in pursuance of said agreement plaintiff paid defendant $50 cash on said 21st day of July, 1903, and was placed in possession of said east half of said lot by defendant, and proceeded to and did buy lumber from defendant and erected a house on said east half of said lot. That on the 20th day of October, 1903, he paid defendant the sum of $50 in accordance with the terms of said agreement, and on the 31st day of October, 1904, he paid defendant the sum of $101.78, the balance due under the terms of said agreement, and thus complied fully with his part of the agreement. (3) That on the 31st day of October, 1904 plaintiff made a written demand on said defendant to make and execute to him a warranty deed to said east half of said lot, which said deed defendant refused and still refuses to make, execute, and deliver to this plaintiff, notwithstanding plaintiff has performed all his part of said agreement. Wherefore he prays judgment that said defendant be decreed and compelled to make, execute, and deliver to this plaintiff in a reasonable time, to be fixed by the court, a warranty deed to the east half of lot 3 in block 6 of Trafton's addition to Malta, and that this honorable court appoint a commissioner to make such conveyance in default of one being made by defendant in the time fixed by the court, and for his costs herein." Defendant filed a general demurrer to the complaint, but afterwards withdrew the same and filed an answer, wherein he denied each and every allegation thereof. Plaintiff was the only witness in his own behalf. After testifying to the contract for the sale of the lot, as alleged in his complaint, he continued as follows: "Mr. Trafton paced the lot off, indicating the northeast and northwest corners, scratching in the dirt, and said: 'This is the parcel.' We then went to the bank, and I paid him $50 cash. He called in Mr. Smith from another part of the bank, and said, 'Smith, Stevens has purchased the east half of this lot,' putting his finger down on the plat which he held in his hand. 'Mark it sold. He is to pay $100. The conditions are that he is to pay $50 down, and $50 in three months. You take the money and give him a receipt.' Mr. Trafton then withdrew, and Mr. Smith went into another part of the bank, and came back and gave me a receipt, reading as follows: 'Malta, Montana, July 21, 1903. Received of C. H. Stevens the sum of fifty dollars ($50.00) being part payment on the east half of lot 3, block 6, of Trafton's addition to Malta, Montana; another fifty dollars ($50.00) to be paid in three months, and the balance in six months, at which time a warranty deed is to be given the said Stevens. R. M. Trafton, per Smith.' I paid the second $50 on October 20, 1903. I have the receipt signed by E. Smith, as follows: '$50.00. October 20, 1903. Received of C. H. Smith fifty dollars, part payment on lot. E. Smith.' I offered to pay the money to Mr. Trafton, but he sent me to Smith. I made this payment to Mr. Smith by direction of Mr. Trafton. Mr. Trafton told me to go and pay Smith. *** He said to pay it to Smith, which I did, and took a receipt. *** After having paid everything, I made a demand on Mr. Trafton for a deed in person, and by registered letter. I was at his store, and I told him I wanted a deed to this lot that I had contracted for, the east half of lot 3, block 6. He said: 'You will get your deed when you pay for it.' I said: 'Everything is paid for.' Then he said: 'Who did you pay?' I said I paid Smith. He said: 'Go to Smith for your deed.' I went to Smith and he sent me back to Trafton, and then I served written notice, through the post office, on Mr. Trafton, demanding a warranty deed for the property. I never received any reply to that written notice. Smith is out of the country, and has been for a long time. I paid for the lot in full according to Mr. Trafton's directions. I put a frame building, 12x18 feet, 10 feet high, on the lot. I have remained in possession ever since I purchased the lot, and I am in possession now. The contract I had with Mr. Trafton was a verbal contract. *** I have no written agreement concerning this lot. *** My recollection is clear as to the terms of this oral agreement. *** As Mr. Trafton went out of the bank he said: 'So far as the lumber is concerned, you can pay that at the bank.' *** I handed the $50 to Trafton, and he passed it on to Smith. *** The next conversation I had as to title on payment was on the 20th of October, 1903, when I started from the office which I had built on the lot down to his store to pay him the remaining $50, and I met him on the street and told him I was going down to pay him the other $50 on my lot. He said: 'I am busy. Go in and pay Smith.' He went on, and I went in and paid it to Smith. *** Then it ran along until the day I paid my lumber bill, which was the 31st day of October, 1904. The reason why I didn't demand a deed when I paid the $50 in 1903 was because I had a lumber bill for about $90 on that lot, due to Trafton, and I hadn't any idea that he would give me a deed until I had

paid it. I did not ask him at that time, or make any demand. I waited for about a year before I made a demand. I saw Trafton off and on about every day during that time. On the 31st day of October, 1904, I did make a demand on Mr. Trafton, and he told me to go to Smith for the deed. I went to Smith, and I did not get my deed. Mr. Smith simply grinned and said: 'You better go back to Trafton.' I did not go back to Trafton, but wrote out a demand on him and sent it by registered letter. That demand reads as follows: 'Malta, Montana, October 31, 1904. R. M. Trafton, City-Sir: I hereby demand of you a warranty deed to the east half of lot 3, block 6, Trafton's addition to Malta, as per our agreement of July 21, 1903, and if the same is not delivered within six days from date, I shall begin proceedings against you to recover the same, and such damages as the law allows. C. H. Stevens."' The record recites that at the conclusion of this testimony "the defendant moved for a nonsuit, upon the ground that, under the proof, no decree for specific performance could be awarded." The district court granted the motion, entered a judgment for the defendant, and plaintiff appeals therefrom.

Appellant contends that the court erred in granting the so-called motion for a nonsuit, for the...