Wolf v. Eagleson

• Decision Date: 26 May 1916
• Citation: 29 Idaho 177,157 P. 1122
• Parties: S.W. WOLF, Respondent, v. HARRY K. EAGLESON, Appellant, and MELROSE YOUMANS, Respondent, v. HARRY K. EAGLESON, Appellant
• Court: Idaho Supreme Court

157 P. 1122

29 Idaho 177

S.W. WOLF, Respondent, v. HARRY K. EAGLESON, Appellant, and MELROSE YOUMANS, Respondent, v. HARRY K. EAGLESON, Appellant

Supreme Court of Idaho

May 26, 1916

CONTRACTS FOR SALE OF REAL PROPERTY-STATUTE OF FRAUDS-INSUFFICIENT MEMORANDUM OF AGREEMENT-PART PERFORMANCE-EVIDENCE-PRESUMPTION AS TO EVIDENCE NOT IN RECORD-FINDING OF ULTIMATE FACT-JUDGMENT ON CONFLICTING EVIDENCE.

1. Memorandum of agreement for sale of real property considered and held that such memorandum is too indefinite to take the agreement out of the statute of frauds.

2. Part performance of an oral agreement for the sale of real property, when proven, gives a court of equity power to compel specific performance of such contract.

3. In an action for specific performance of a contract for the sale of real property, the property in question being a forty-acre tract described by legal subdivisions in the complaint, the plaintiff on the trial was unable to testify as to the legal subdivisions but drew a sketch of the forty-acre tract on a sheet of paper, which indicated its location with reference to adjoining subdivisions of the section in which said forty-acre tract was situated. The record discloses no other evidence identifying the description of the forty-acre tract as alleged in the complaint. Held, that it must be presumed on appeal from a judgment for specific performance that the trial court had before it sufficient evidence upon which to base its decree.

4. Where the trial court makes a finding of fact to the effect that the rescission of a certain contract "was understood between the parties thereto to be a settlement of all actions between the plaintiff and defendant growing out of said contract," it is not necessary for the court to make findings on certain affirmative allegations of defendant's answer claiming items of damage for violation of the contract on the part of plaintiff, since the finding in question was ultimate in its nature and in itself disposed of all claims made by defendant arising out of such contract.

5. Where conflicting evidence is submitted to a trial court sitting without a jury, either as a court of law or as a court of equity, the findings of the court on questions of fact will not be disturbed where there is some competent evidence to support them.

6. Contracts for the sale of real property considered, and held that the consideration was adequate.

[As to part performance of parol exchange of lands, see note in Ann.Cas. 1912A, 309]

APPEALS from the District Court of the Seventh Judicial District for Canyon County. Hon. Ed. L. Bryan, Judge.

Actions to recover on contracts for the sale of real property. Judgments for plaintiffs. Affirmed.

Judgment of the lower court affirmed. Costs awarded to respondents.

E. J Frawley and Scatterday & Van Duyn, for Appellant.

The affirmative allegations in the counterclaim upon which affirmative relief is asked for have been completely disregarded. A trial court must find upon all the material issues raised by the pleadings. (Brown v. Macey, 13 Idaho 451, 90 P. 339; Wood v. Broderson, 12 Idaho 190, 85 P. 490; Stoneburner v. Stoneburner, 11 Idaho 603, 83 P. 938.)

Where a party is seeking to enforce in equity the specific performance of a contract, there must be an allegation of facts which affirmatively show the adequacy of consideration. A mere statement of the price agreed to be paid is not enough. (White v. Sage, 149 Cal. 613, 87 P. 193; Prince v. Lamb, 128 Cal. 120, 60 P. 689; Flood v. Templeton, 148 Cal. 374, 83 P. 148; Waymire v Waymire, 141 Ind. 164, 40 N.E. 523; Mayger v. Cruse, 5 Mont. 485, 6 P. 333; Sunrise Land Co. v. Root, 160 Cal. 95, 116 P. 72.)

Rice, Thompson & Buckner, for Respondents.

Evidence of the agreement cannot be received without the writing or secondary evidence of its contents for the sale of real property or of an interest therein. In the case of a novation, one of the requirements is that the new contract substituted for the old must be a valid contract. (Spycher v. Werner, 74 Wis. 456, 43 N.W. 161, 5 L. R. A. 414; Pope v. Vajen, 121 Ind. 317, 22 N.E. 308, 6 L. R. A. 688; Hill v. Warner, 20 Ind.App. 309, 50 N.E. 582; Piehl v. Piehl, 138 Mich. 515, 101 N.W. 628; Sutter v. Moore Inv. Co., 30 Wash. 333, 70 P. 746.)

Respondent contends that this is not a case of novation, but is a case of accord executory. It is not the new promise itself, but the performance of the new promise that is accepted as satisfaction. (1 R. C. L. 178; Kromer v. Heim, 75 N.Y. 574, 31 Am. Rep. 491.)

An unexecuted accord is no bar to an action on the original undertaking. (Manley v. Vermont Mut. Fire Ins. Co., 78 Vt. 331, 62 A. 1020, 6 Ann. Cas. 562; Hard v. Burton, 62 Vt. 314, 20 A. 269; Bandman v. Finn, 185 N.Y. 508, 78 N.E. 175, 12 L. R. A., N. S., 1134.)

The testimony in the Wolf case shows that it was the performance of the new agreement which was to effect the settlement.

SULLIVAN, C. J. Budge and Morgan, JJ., concur.

OPINION

SULLIVAN, C. J.

These cases were separately tried in the court below, and the parties plaintiff, the causes of action and the subject matter are different, but as the questions at issue arise out of identical transactions and circumstances, the cases were briefed and argued together in this court, and they will be considered together in this opinion.

On January 30, 1907, H. K. Eagleson, the defendant, and plaintiff S.W. Wolf entered into a written contract concerning a tract containing half a section of land near Parma, in Canyon county, which had shortly before been acquired by Eagleson. The contract contained, among others, the following provisions:

Eagleson sold to Wolf an undivided half interest in the 320 acres in question, describing it, for the sum of $ 8,000, $ 706.50 of which was acknowledged to be paid, the balance of the purchase price to be paid on or before January 1, 1912, with interest at six per cent, deed to be given to such undivided interest when the payments on the contract amounted to a stipulated sum. Wolf was to enter into possession of the tract and proceed to cultivate and improve it. The payment of $ 706.50 by Wolf on this contract was in the form of a half interest in personal property belonging to Wolf, said personal property consisting of livestock, tools and implements, which it was stipulated should be used on said premises for the joint account of both parties. Eagleson agreed to advance during the year of 1907 the sum of $ 500 for implements and improvements. Wolf assumed an undivided one-half of a mortgage of $ 5,000 which was then against the property, said amount to be deducted from the purchase price stipulated. The parties were to share equally in the expenses of cultivating and improving the tract, including taxes and interest, and also to share equally in the net earnings. Wolf was to pay all the personal expenses of himself, family and employees, and was to pay personally for any help which he might employ. The following provision was also included: "It is further stipulated that in the event that the parties hereto shall agree to sell any portion or all of the above-described premises that the undivided one-half of such sale price belonging to second party shall be applied on the purchase price herein mentioned until the same is fully paid and satisfied."

Wolf went into possession under this contract and shortly thereafter employed the plaintiff Melrose Youmans to work for him. Youmans lived with the Wolf family.

It appears from the evidence that in the latter part of 1910, both parties to the above contract became somewhat dissatisfied and desired to terminate it. About this time Eagleson proposed to Wolf to surrender to Wolf his interest in the personal property in consideration of a rescission of the contract. Wolf thought that he should receive more than the personal property merely, and suggested the additional consideration of $ 1,300. This Eagleson declined to consider. A few months thereafter Eagleson had a prospect of selling one-half of the 320 acres to one Larson for $ 50 an acre. This was an additional incentive to Eagleson to negotiate for the termination of the contract between himself and Wolf, and, according to the testimony of Mr. and Mrs. Wolf, he came down from Boise to their place in February, 1911, for that purpose. About this time it also appears that the plaintiff Youmans had become somewhat uneasy about the payment of arrears of wages due him from Wolf, and that all the parties, including Eagleson, went over the book entries of Youmans' account with Wolf and agreed that there was due Youmans on that account the sum of $ 1,218.

The plaintiffs and Mrs. Wolf agree substantially in their evidence as to the terms of the oral agreement which was made in February or March, 1911, between Eagleson and Wolf to take the place of the first contract and which for convenience we will hereafter refer to as the second contract. The substance of this latter agreement was that in case Eagleson succeeded in selling part or all of the property, he should pay Wolf $ 1,500 and surrender to Wolf his share of the personal property, in consideration of a relinquishment by Wolf of all his interest in the land. Youmans was to get his wages out of the $ 1,500. The making of this agreement is denied by Eagleson. It appears, however, that on March 22, 1911, Wolf gave Eagleson a quitclaim deed for that half of the 320 acres which Eagleson desired to sell to Larson, and that Eagleson consummated the sale to Larson on May 9th. The Wolfs testify that they thereafter importuned Eagleson to carry out his part of this contract and make payment of the $ 1,500, but that he failed to do so. They then entered into further negotiations with Eagleson, which never resulted in...