Winders v. Hill.

Walker, J., after stating the case: The complaint contains so many evidentiary facts that we have experienced great difficulty in stating its substance, and at the same time preserving to the defendant the benefit of every fact which he is entitled to have considered in passing upon the demurrer, without the appearance of prolixity. The function of a complaint is not the narration of the evidence, but a statement of the substantive and constituent facts upon which the plaintiff’s claim to relief is founded. The bare statement of the ultimate facts is all that is required, and they are always such as are directly put in issue. Probative facts are those which may be in controversy, but they are not issuable. Pacts from which the ultimate and decisive facts may be inferred are but evidence and therefore probative. Those from which a legal conclusion may be drawn and upon which the right of action depends are the issuable facts which are proper to be stated in a pleading. The distinction is well marked in the following passage: “The ultimate facts are those which the evidence upon the trial will prove and not *703 the evidence which will be required to prove the existence of those facts.” Wooden v. Strew, 10 How. Pr., 48; 4 Enc. of Pl. & Pr., p. 612. The first ground of the demurrer is untenable. It is well settled that a cause of action for specific performance may be joined with one for damages resulting from a breach of the contract, or from a delayed performance, or for any other damages growing out,of the transaction to which the plaintiff may show himself entitled. It is the object of the reformed procedure to administer full relief in one and the same action, and consequently if a complaint states facts constituting a cause of action for specific performance and also one for damages for a breach of the contract, a failure as to the first will not prevent a recovery on the second, whatever may be the form of the prayer for relief. Pomeroy Cont., sec. 480; Sternberger v. McGovern, 56 N. Y., 12. When the court finds for the plaintiff upon the general equity of the case, but declines in the exercise of its sound discretion to decree specific performance, or when the defendant.is unable to comply with his contract, it may award damages, 20 Enc. Pl. & Pr., pp. 482, 488; or specific performance may be decreed, and, in addition, damages may be given for unjustifiable delay in doing what should have been promptly done. Ibid., 490; Clark’s Code, sec. 267, and notes; Gregory v. Hobbs, 93 N. C., 1; Lumber Co. v. Wallace, ibid., 22. Much stress was laid upon this ground of demurrer in the argument, but it cannot be sustained. We do not mean to intimate that the plaintiff has suffered any damages, but only to decide that, if he has, they may be recovered in this action. The next objection made by the demurrer, that the associates of J. E. Winders should have been made parties, was said by the plaintiff to be fully answered by the statute which provides that “a trustee of an express trust may sue without joining with him the person for whose benefit the action is *704 prosecuted. A trustee of au express trust, within the meaning of this section, shall be construed to include a person with whom or in whose name a contract is made for the benefit of another.” Revisal, sec. 404. Under this section, when a person contracts in his own name, but really for the benefit of another, he is to be regarded as the trustee of an express trust whether the name of the beneficiary is disclosed or not. 15 Enc. Pl. and Pr., 124; 16 ibid., 897; Bliss on Code Pleading (3 Ed.), sec. 55, et seq. The law requires that every action shall be prosecuted in the name of the real parties in interest, and the right to sue in the name of a trustee of an express trust is an exception to the general rule. Winders cannot be regarded as such a trustee because, here, the contract was made directly with the syndicate which was composed of Winders and his associates, and the case is the same as if it had been made with a firm composed of certain members. If the associates had been designated by their individual names, instead of by the pronoun, no doubt would be entertained upon the question, and we are unable to see why the failure to mention their names can make any difference in the application of the statute. It also appears that there were other parties, besides Winders, who were actually dealing with Hall, the agent, and it may be reasonably inferred that they were the associates. This ground of demurrer is sustained. We are now brought to the consideration of the two principal questions in the case. The defendant’s letter of June 6 which gave Hall the authority to sell does not fix any time for the payment of the purchase money, and the general principle is that when no time is specified in a contract for the performance of an act or the doing of a thing, the law implies that it may be done or performed within a reasonable time. Michael v. Foil, 100 N. C., 178; Bunch v. Lumber Co., 134 N. C., 116; 2 Paige Cont., sec. 1154 That principle would apply in this case if there had been an option. *705 Houghwout v. Boisaubin, 18 N. J. Eq., 315; Clark Contracts, 596. But we do not think the contract disclosed by the correspondence between the defendant and Hall amounted to an option. Hall acted as agent for the sale of the property, and the contract with Winders and his associates is executed by him in that capacity. It is apparent from the correspondence that the parties contemplated that Hall should sell and not buy. This is made perfectly clear by reference to the defendant’s letter to Hall, dated June 6, in which we find the following passages: “If you can handle my property so as to net me $20,000 you are at liberty to do so. This offer is good for four months. Of course, should you meet with some success in selling it about the end of the four months and wish an extension of time, I will give it to you. In case you do not meet with encouragement from your prospective buyer, advise, as I have some parties wishing to buy the timber, if I cannot sell the land.” It is true that the defendant in that letter uses this expression: “This note should be used as an option to purchase” — but calling it an option did not necessarily make it so. Its character as an option, or as an agency, must be determined by the law from the nature of the dealing between the parties and the language of the correspondence. When the defendant said that the note should be regarded as giving an option, he meant no more nor less than that Hall should have the right to sell the property within four months. But if we should look at it in another way, namely, that Hall should himself have the right to buy the land within four months and that, so far as this right is concerned, it should be treated as an option, and that he should also have the authority to sell within the same time, viewing the matter in a double aspect, we find that Hall did not avail himself of the option or profess to do so. He acted and assumed to act throughout the transaction between him and the defendant not for himself, but as the defendant’s agent engaged in the effort to sell the land to *706 third parties, and the dealing was finally consummated in this way. We are quite sure that the presiding judge must have considered the case as presenting a question of agency, for he decided it upon the ground of ratification. Hall sold the land to. Winders and others within the four months, or during the existence of the agency, and the defendant is bound by what he did, provided Hall acted in conformity to his authority, or, if he did not, provided further that the defendant has either waived his departure from the instru’c-tions or acquiesced in and ratified his acts. The power to sell land does not of itself imply an authority to sell on credit. The presumption is that the sale is to be for cash. Mechem on Agency, secs. 325 and 353; 2 Paige Cont., sec. 963; Brown v. Smith, 67 N. C., 245; Moye v. Cogdell, 69 N. C., 93; Burk v. Hubbard, 69 Ala., 379; School Dist. v. Ins. Co., 62 Me., 330; Lumpkin v. Wilson, 5 Heisk., 555. In School Dist. v. Ins. Co., supra, the court says: “It is needless to cite cases to establish the general principle that a specific authority or direction to sell does not authorize a sale on credit, unless, at the place of sale, there is an usage, general or special, in reference to which an authority to sell upon credit is supposed to be given.” Assuming, therefore, that when Hall undertook by his own contract with Winders and his associates to sell on credit, that it is to extend the time of payment, so that the purchase money would be payable “by October 7, as may be agreed upon,” and that in this respect he exceeded his authority, the question still remains, has the defendant ratified this unauthorized act? In passing upon a demurrer to a pleading, we deem it proper to say as little about the merits of the case and to comment as little on the facts as possible, or as is consistent with a full statement of an opinion upon the question of law involved and necessary to be decided in order to dispose of the appeal. Should we go beyond this, there is danger that *707 something will be said which may necessarily prejudice one or the other of the parties in the future trial of the cause. We desire to refrain from giving utterance to anything that may have such an effect. We therefore content ourselves with saying that we have carefully examined the facts alleged, and admitted by the demurrer and have concluded that there are some which should be submitted to the jury, upon the question of ratification, with proper instructions from the court as to what would, under the circumstances, constitute a ratification. Brown v. Smith, supra. The ruling of the court as to parties is reversed, but in all other respects its rulings are sustained. The associates of J. R. Winders must be made parties to the action by order of the court below and all necessary process should'be issued for that purpose. Modified and Affirmed.