Walsh v. Selover, Bates & Co.

• Decision Date: 03 December 1909
• Citation: 123 N.W. 291,109 Minn. 136
• Court: Minnesota Supreme Court
• Parties: WALSH v. SELOVER, BATES & CO.

109 Minn. 136

123 N.W. 291

WALSH

v.SELOVER, BATES & CO.

Supreme Court of Minnesota.

Nov. 20, 1909.

On Rehearing, Dec. 3, 1909.

Appeal from District Court, Hennepin County; Andrew Holt, Judge.

Action by Ella T. Walsh against Selover, Bates & Co. Verdict for plaintiff. From an order denying a new trial, defendants appeal. Affirmed.

See, also, 117 N. W. 499.

Syllabus by the Court

Finnes v. Selover, Bates & Co., 102 Minn. 334, 113 N. W. 883, to the effect, in so far as concerns an action for damages for the breach of an executory contract made and to be performed in this state for the sale of land in another state, that chapter 223, p. 431, Laws 1897, whereby it is provided that no contract for the sale of land shall be declared canceled except upon 30 days' notice to the vendee, controls the right of the vendor to cancel the same, followed and applied. Arthur W. Selover, for appellants.

A. B. Choate, for respondent.

BROWN, J.

Action to recover damages for the breach of an executory contract for the sale of land, in which plaintiff had a verdict, and defendants appealed from an order denying a new trial.

The facts are as follows: One Bates was the owner of the land, which is situated in the state of Colorado, and on the 26th day of January, 1904, entered into an executory contract for the sale thereof to P. D. Walsh. The contract was in writing, and provided, among other things, for the payment of the purchase price at the office of defendants herein, at Minneapolis, this state, in installments, at stated times in the future, and also that Walsh should pay all taxes levied against the land at the time provided therefor by the laws of Colorado. Thereafter Bates duly assigned the contract and all his right and interest therein to defendants in this action, who thereupon assumed all obligations imposed upon Bates. Prior to the attempted cancellation of the contract, presently to be mentioned, Walsh had paid upon the purchase price of the property something over $700. Subsequent to such payment Walsh duly assigned his interest in the contract to his wife, plaintiff herein. On March 5, 1907, claiming that default had been made by Walsh in the performance of the terms of the contract respecting the payment of certain taxes assessed against the land, and which fell due March 1, 1907, defendants, by written notice, canceled the contract, and declared the same at an end, and refused further to be bound by it. Thereafter plaintiff brought this action for damages for the refusal of defendants to perform.

Several questions were presented to the court below by the pleadings and evidence, only two of which are brought to this court for review. All others were eliminated by stipulation of the parties. The questions agreed to be submitted by this stipulation are: (1) Does chapter 223, p. 431, Laws 1897, which provides that a vendor in a contract for the sale of land shall have no right to cancel, terminate, or declare a forfeiture of the contract except upon 30 days' written notice to the vendee, apply to the contract in question? and (2) if it be so held, is the statute constitutional?

1. The question whether the statute applies to the contract is disposed of adversely to defendants' contention by the decision of this court in Finnes v. Selover, Bates & Co., 102 Minn. 334, 113 N. W. 883, where the precise situation was presented and passed upon. But counsel for defendants contend that the case at bar is distinguishable in its facts. We are unable to discover any substantial difference between the two cases. The only features in which they differ at all are that in the case referred to all parties resided in Minnesota, and the contract...