Weitzner v. Thingstad
| Decision Date | 13 November 1893 |
| Docket Number | 8445 |
| Citation | 56 N.W. 817,55 Minn. 244 |
| Parties | Betty Weitzner et al. v. Ole A. Thingstad |
| Court | Minnesota Supreme Court |
Argued November 1, 1893.
Appeal by plaintiffs, Betty Weitzner, Charlotte Gruenberg and Simon Gruenberg, from an order of the District Court of Hennepin County, Frederick Hooker, J., made March 1, 1893, overruling their demurrer to the second defense stated in the answer.
The complaint stated that on September 20, 1892, defendant Ole A Thingstad made a contract with plaintiffs to convey to them with warranty two lots in Minneapolis for $ 23,000. They agreed to pay him $ 12,000 in fifteen days at which time he and his wife were to give plaintiffs a deed of the lots subject to a mortgage for $ 11,000 then on the property which mortgage plaintiffs were to assume. That on October 4 1892, plaintiffs tendered the $ 12,000 and demanded a deed but defendant refused and ever since has failed and refused to deed to them the property or any of it, to their damage $ 10,000 for which sum they prayed judgment. The defendant denied that the contract was delivered by him and for a second answer alleged that he was married and lived with his family on one of the lots. That it was and long had been his homestead, that his wife did not join in or execute the contract with him and it was for that reason void. To this second answer the plaintiffs demurred. The demurrer was overruled and plaintiffs appeal.
Order affirmed.
Chas. J. Bartleson, for appellants.
We concede that the contract is ineffectual as to the homestead and the only question is whether it is valid as the personal obligation of the defendant so as to render him personally liable in damages for its nonperformance. Specific performance of the contract cannot be decreed while the wife lives and occupancy of the family continues, but it does not follow from this that the husband is not liable in damages to plaintiffs, the same as he would be on any other covenant he had rendered himself unable to perform. Yost v. Devault, 9 Ia. 60; Cross v. Everts, 28 Tex. 523; Wright v. Hays, 34 Tex. 253.
In our leading case of Barton v. Drake, 21 Minn. 299, this Court was careful to say that such a contract is ineffectual to bind the land. The defendant's liability in damages for refusal to perform was not before the Court in that case, nor in any of the subsequent cases in this Court; and where this Court has said that such contract is entirely void, it must be understood to mean with reference to specifically enforcing the contract. The authorities cited in Barton v. Drake, supra, in support of the proposition, do not go beyond this.
Aside from the Texas cases cited, I have not been able to find authorities bearing directly on this point. One who absolutely and unconditionally agrees to do any lawful act is ordinarily held liable in damages for his failure to do it.
The answer demurred to alleges that a part only of the property was defendant's homestead. This would not under any circumstances render the contract void in toto, but only void as to the homestead. Wallace v. Harris, 32 Mich. 380; Burnap v. Cook, 16 Ia. 149.
It is true that a gross consideration was agreed upon for both lots, but it is susceptible of proof upon the trial what the damage of the plaintiffs was for the refusal to convey the nonexempt lot and the relative value of the two.
Gjertson & Rand and Henry J. Gjertson, for respondent.
It must be presumed that the parties knew when they made the contract that it was absolutely void, and if they contracted with that knowledge, how could the plaintiffs be damaged. They had no right in law to rely in any way upon the performance of an absolutely void contract. It was absolutely void in its inception and cannot possibly be made the basis for an action of damages. Barton v. Drake, 21 Minn. 299; Smith v. Lackor, 23 Minn. 454; Coles v. Yorks, 28 Minn. 465; Alt v. Banholzer, 39 Minn. 511; Jelinek v. Stepan, 41 Minn. 412.
In Iowa it has been held that an action could not be maintained for damages against the husband on a contract of this character where the wife has not joined in and become a party to the contract. Barnett v. Mendenhall, 42 Ia. 296; Clark v. Evarts, 46 Ia. 248; Cowgell v. Warrington, 66 Ia. 666.
Plaintiffs suggest that only one of the lots was the defendant's homestead and therefore the contract is not void in toto, but only void as to the homestead lot. If that part of the answer setting up the homestead claim as a defense is available to the defendant for any purpose, then the demurrer was properly overruled.
This was an action to recover damages for the refusal of the defendant to perform a contract to convey real property. One of the defenses interposed by the defendant was that a part of the premises contracted to be conveyed was his homestead, and that his wife did not join in the contract, and that for that reason it was void. This appeal is from...
To continue reading
Request your trial