Wolter v. Dixon

• Decision Date: 22 April 1916
• Citation: 29 Idaho 26,157 P. 250
• Parties: ADELHAID WOLTER, Appellant, v. D. D. DIXON, Respondent, and ADELHAID WOLTER, in Her Own Proper Person as Widow and Administratrix of the Estate of PETER WOLTER, Deceased, Appellant, v. D. D. DIXON, Respondent
• Court: Idaho Supreme Court

157 P. 250

29 Idaho 26

ADELHAID WOLTER, Appellant, v. D. D. DIXON, Respondent, and ADELHAID WOLTER, in Her Own Proper Person as Widow and Administratrix of the Estate of PETER WOLTER, Deceased, Appellant, v. D. D. DIXON, Respondent

Supreme Court of Idaho

April 22, 1916

CONTRACT - BREACH-PLEADINGS-AFFIRMATIVE DEFENSES-RELIANCE-DEMURRER-ACTION UNLAWFUL DETAINER-COUNTERCLAIMS-INDEPENDENT ACTIONS-REAL PROPERTY-VENDOR'S TITLE-GOOD AS TO VENDEE-CHATTEL MORTGAGE AND PROMISSORY NOTES-UNEXECUTED-ATTEMPTED TENDER-FINDINGS AND JUDGMENT-SUPPORT.

1. Where it is impossible to determine from the allegations of an answer upon which of two affirmative defenses defendant relies, a demurrer to the answer should be sustained upon that ground, since plaintiff is entitled to know upon which of the defenses in question defendant relies.

2. In an action growing out of a written agreement for the sale of real and personal property, where the contract in express terms provides for deferred payments to be made at stipulated dates and amounts, matters cannot be set up by defendant in way of offset or counterclaim which are subject to an independent action, and in nowise grew out of or were germane to any of the terms or conditions contained in the written agreement; and a demurrer to the answer upon that ground should be sustained.

3. In a summary proceeding brought for the express purpose of recovering possession of real property upon a breach of a specific condition in a contract, which contract could be terminated upon proof of a breach of any of its terms or conditions, breaches of subsequent contracts or agreements cannot be pleaded as a defense.

4. In an action growing out of the breach of a written agreement for the sale of real property, which provides that "Time is agreed to be the essence of this contract and in case of default in any deferred payment as above set forth, the said party of the second part shall forfeit any rights he may have to said premises.... and he shall surrender possession of said land and improvements thereon, if any, to said party of the first part," where the answer admits a failure to pay the first deferred payment in accordance with the provisions of the written contract, and sets up as jus- tification therefor separate and distinct agreements from the one which is the subject of the action such separate agreements and any damages flowing from a breach thereof must be the subject of an independent action.

5. In an action growing out of an agreement for the sale of real property, one of the terms of which was the payment of taxes by the vendee, where defendant admits in an answer that he did not pay such taxes, and sets up as justification therefor that the vendor did not have authority at the time when the taxes became due to sell or dispose of the premises described in the written contract, such plea constitutes no defense to the action under the terms of the contract which provides that the vendor was under no obligation to convey the premises until the purchase money had been paid in full together with all taxes.

6. A would-be purchaser in possession of land under an executory contract for the purchase of the same is estopped from denying his vendor's title.

7. The proffer of an unexecuted and unacknowledged chattel mortgage and of unexecuted promissory notes, or the tender of the same in court, is not a compliance with the terms of a contract requiring the execution and delivery of such chattel mortgage and promissory notes.

8. Held, that the evidence fails to support the findings of the court, and the findings do not support the judgments.

APPEAL from the District Court of the Fourth Judicial District, for Lincoln County. Hon. W. A. Babcock, Judge.

Actions to recover on breach of contract. Judgments for defendant. Reversed.

Reversed and remanded, with instructions. Costs awarded to appellant.

A. L Fletcher, J. J. McFadden and W. A. Brodhead, for Appellant.

The demurrer to the answer should have been sustained, because the answer was filed in a summary proceeding to recover possession of real estate, and involved the consideration of three separate and distinct items of counterclaim, one of which was unliquidated and founded upon the negligence of appellant. (Hunter v. Porter, 10 Idaho 72, 77 P 434; Ralph v. Lomer, 3 Wash. 401, 28 P. 760; Phillips v. Port Townsend Lodge, 8 Wash. 529, 36 P. 476; Owens v. Swanton, 25 Wash. 112, 64 P. 921; Carmack v. Drum, 27 Wash. 382, 67 P. 808.)

There was nothing in the answer to show whether respondent would rely upon contract or tort as the basis of his claims, since the answer set up a claim based on negligence and in the same paragraph set up an agreement to pay, and there was no statement of facts constituting his cause of action against appellant required by Rev. Codes, secs. 4168 and 4184-4187, and the approved forms and rules of pleading. (Moore v. Evans, 24 Idaho 153, 132 P. 971; First Nat. Bk. of Hailey v. Bews, 3 Idaho 486, 31 P. 816; McGuire v. Lamb, 2 Idaho 378, 17 P. 749; Swanholm v. Reeser, 3 Idaho 476, 31 P. 804.)

A mere statement of intention or a promissory expression made without intention to contract is not such an offer as may be turned into an agreement by acceptance. (9 Cyc. 276; Lakeside Land Co. v. Dromgoole, 89 Ala. 505, 7 So. 444; Perkins v. Westcoat, 3 Colo. App. 338, 33 P. 139; Higgins v. Lessig, 49 Ill.App. 459; Stagg v. Compton, 81 Ind. 171; Phillips v. Van Schaick, 37 Iowa 229; Marsh v. Tunis, 39 Mich. 100; Bolles v. Walton, 2 E. D. Smith (N. Y.), 164.) The lack of authority on part of appellant to convey was no excuse for respondent's failure to perform strictly as he had agreed in his contract. (Rischar v. Shields et ux., 26 Idaho 616, 145 P. 294.) A would-be purchaser in possession of land under an executory contract for the purchase of the same is estopped from denying his vendor's title. (Page v. Bradford-Kennedy Co., 19 Idaho 685, Ann. Cas. 1912C, 402, 115 P. 694.)

A plea of tender cannot be supported, unless accompanied by the payment of the money into court. (Park v. Wiley, 67 Ala. 310.)

There was no tender of chattel mortgage. A plea that the defendant was ready and willing to perform or deliver the articles at the time and place stipulated is insufficient. Readiness does not amount to a tender. (Brooklyn Bank v. De Grauw, 23 Wend. (N. Y.) 342, 35 Am. Dec. 569.)

Offer of a certain sum in satisfaction of an unliquidated claim does not operate as a legal tender if refused. ( McDaniels v. Bank of Rutland, 29 Vt. 230, 70 Am. Dec. 406; San Pedro Lumber Co. v. Reynolds, 121 Cal. 74, 53 P. 410.)

A tender of less than amount due is bad. (Rose v. Duncan, 49 Ind. 269; Barnes v. Greene, 30 Iowa 114; Call v. Lothrop, 39 Me. 434; Martin v. Whisler, 62 Iowa 416, 17 N.W. 593.)

In the case of a conditional sale, the loss of the property sold falls upon the purchaser. (Harley & Willis v. Stanley, 25 Okla. 89, 130 Am. St. 900, 105 P. 188; Burnley v. Tufts, 66 Miss. 48, 14 Am. St. 540, 5 So. 627; Osborn v. South Shore Lumber Co., 91 Wis. 526, 65 N.W. 184.)

The covenant to convey and to pay the first instalment were not concurrent. In the sale of land upon instalments it is only the payment of the last instalment and the delivery of the deed that are mutually concurrent and dependent obligations, and no tender of deed is necessary. (Rischar v. Shields, supra; Brentnall v. Marshall, 10 Kan. App. 488, 63 P. 93; Voight v. Fidelity Inv. Co., 49 Wash. 612, 96 P. 162.) His obligations to make the payments and give the security were independent covenants.

Harlan D. Heist, for Respondent.

"The general rule that a vendor of land in order to enforce any rights under the contract of sale must himself be in a situation to give such title as he has undertaken to give, is undisputedly established and has been frequently applied in cases where the vendor sought to enforce forfeiture as against the vendee." (Warvelle, Vendors, 2d ed., sec. 813.)

"The vendor cannot rescind when he is not in a position to perform his own undertaking." (Converse v. Blumrich, 14 Mich. 109, 90 Am. Dec. 230; Wallace v. McLaughlin, 57 Ill. 53.)

"The fact that time is of the essence of the contract will not enlarge the right of a vendor who is not in a condition to convey, to declare a forfeiture for the vendee's default in payment." (Baker v. Bishop Hill Colony, 45 Ill. 264; Frink v. Thomas, 20 Ore. 265, 25 P. 717, 12 L. R. A. 239.)

"The question of whether or not it need be the first or last, or any intermediate payment on a contract of this nature is treated as immaterial." (Sievers v. Brown, 34 Ore. 454, 56 P. 171, 45 L. R. A. 642.)

In matters of conditions precedent, even to take the extreme view of it, it would not have been necessary for the respondent to have executed these papers. The fact that the appellant had already refused to accept them if executed, of which respondent had due notice, would be sufficient. ( Remy v. Olds, 88 Cal. 542, 26 P. 355; Koyer v. Willmon, 150 Cal. 785, 90 P. 135; Lowe v. Yolo County Consol. Water Co., 8 Cal.App. 167, 96 P. 379.)

"A forfeiture is a harsh remedy and will not be allowed except upon clear proof of a breach of the terms of the contract upon which such forfeiture is to be declared." ( Harris v. Reed, 21 Idaho 365, 121 P. 780; King v. Seebeck, 20 Idaho 223, 118 P. 292.)

BUDGE, J. Sullivan, C. J., concurs. Morgan, J., dissents.

OPINION

BUDGE, J.

By stipulation of counsel two actions brought by appellant against the respondent in the district court of the fourth judicial district in and for Lincoln county, are presented in one transcript and were argued and submitted together. The two cases are the result of an agreement to sell certain real and personal property made by appellant, who is...