Beddow v. Flage

Spalding, J. The relief prayed for in the complaint in this action is that the defendant be required to specifically perform his part of an agreement to sell and convey certain land described, and, in case of his failure, that the title be transferred by a decree of the court, and that the plaintiff have and recover $2,900 as damages sustained by reason of the defendant’s refusal to convey the land pursuant to the terms of an agreement set out. The complaint alleges that on or about the 26th of September, 1905, the defendant in consideration of $1 paid to him, and by an instrument in writing, called an option contract, sold and granted to the plaintiff an option for the period of ninety four days from the said date to purchase'the E. of section 11, township 135, range 64 W., La Moure county, for the sum of $4,800, and a copy of the option contract is attached; that at the time said contract was executed and delivered it was understood and agreed that if the plaintiff should elect to purchase said land within said period, he should pay to — 55 — the defendant, on delivery to him of the proper conveyance, at least ■one third of such agreed purchase price, and as much more as he might then elect to pay in money; that, if he should elect not to pay all of the ■purchase price in money, he should liquidate the balance by either giving defendant a promissory note and mortgage securing the same, or ■five promissory notes secured by a mortgage • that defendant agreed to -convey said lands free and clear of all encumbrances, by deed, with full ■covenants of warranty, and furnish plaintiff with an abstract of title thereof, showing it free and clear of all encumbrances; that in compliance with the terms of such contract, and on the 27th of December, 1905, plaintiff notified in writing the defendant that he would take said land, and tendered in full consideration the purchase price therefor, $4,800, and demanded a deed and an abstract of title thereof. It is then alleged that defendant refused, and ever since has refused, to convey or to furnish the abstract of title; that at all times referred to the defendant was, and is now, the owner of said premises, and fully competent and able to convey the same in accordance with the terms of such agreement; and that at all times the plaintiff has been fully prepared to ■pay the purchase price in full in money, and brings the same into court for payment to the defendant. A second cause of action is then set out which, in all respects, is identical with the first cause of action, except that in it it is alleged that the plaintiff purchased such option contract for speculative purposes, and that while it was in full force and effect, and relying upon the defendant to convey pursuant to such contract, plaintiff negotiated and sold the ■said land at a profit of $2,400, and obligated himself to convey the same to the purchaser on or before the 1st day of January, 1906, and that, because, of the refusal and failure of the defendant to convey as agreed, plaintiff was unable to convey to his purchaser, and was compelled to ■effect a settlement with him by reason of such failure; and that he necessarily paid and expended, to effect such settlement, the sum of $500. The option contract made a part of the complaint is as follows: Option Contract. For and in consideration of the sum of $1 to me in hand paid, the receipt whereof is hereby acknowledged, I hereby grant unto W. E. — 56 — Bedclow, Cashier of the Citizens’ State Bank of Waukon, Iowa, an option for ninety four days from the 26th day of September, 1905, to purchase for the sum of $4,800.00 the following described land, situated in the county of La kloure and state of North Dakota : The east half of section 11,- 135 — 64. One third or more cash, balance on time at 6-per cent interest, upon the following terms and conditions, to wit: Said W. E. Beddow to signify his intention to take or reject the same by due notice in writing within the time above specified, and a failure to serve such notice within the time specified shall terminate this option without further action, time being the essence of this agreement. In case said notice shall be served in due time, then thirty days shall be given in which to examine abstract, make deeds, and close sale. Ered C. Elage. [Seal] Witnesses: N. W. Niehaus. To this complaint the defendant demurred; First, because several causes of action have been improperly united; second, because the complaint does not state facts sufficient to constitute a cause of action. The trial court overruled the demurrer; and from the order overruling it this appeal is taken. 1. Does this complaint improperly unite two causes of action? We are not concerned with the sufficiency of the allegations of the complaint under either cause of action in the consideration of this question. If the two causes of action attempted to be stated are such as can properly be united in one complaint, the question must be answered in the negative. Bnder the Code several causes of action, whether they are such as have been heretofore denominated legal or equitable or both, where-they all arise out of the same transaction or transactions connected with the same subject of action, may be united. Bev. Codes 1905, § 6877. The first cause of action which respondent attempts to state is for specific performance of the contract to convey land. The second is for damages for failure to convey in accordance with the contract. It is. true that, standing alone, one would involve a suit in equity and the-other an action at law, but the multiplicity of suits necessary under the-old system was one of the things sought to be avoided by the adoption, of the Code provision to which reference has been made. There can he-no question that both these causes of action arise out of the same trans — 57 — action, and it would seem under the plain terms of the section referred to that they may be united in the same complaint. Sheets v. Prosser, 16 N. D. 180, 112 N. W. 72; Tripp v. Yankton, 10 S. D. 516, 74 N. W. 447; Aultman Co. v. Ferguson, 8 S. D. 458, 66 N. W. 1081; Wiles v. Suydam, 64 N. Y. 177; Bliss, Code PI. §§ 166, 167. We need not determine whether it was necessary for the plaintiff to treat the breach of this contract as two causes of action, or whether only one cause of action is shown. Appellant’s authorities are not in point. 2. Does the fact that the contract was made between the defendant and “W. E. Beddow, Cashier of the Citizens’ State Bank of Waukon, Iowa,” and that the suit is brought by W. E. Beddow, disclose no cause of action in Beddow ? This contract was, upon its face, made by the defendant with Beddow, the plaintiff, personally. The rule is adopted in some states that in contracts the words “cashier,” etc., are prima facie descriptive of the person, and do not constitute a representation of the capacity in which the plaintiff was acting in making the contract. Brunswick-Balke-Collender Co. v. Boutell, 45 Minn. 21, 47 N. W. 261. And this is the most favorable to appellant of any rule on the subject called to our attention. The allegations of the complaint are that the contract was with Beddow personally, and it discloses nothing on its face to the contrary. 3. It is contended that the complaint does not disclose any proper tender of performance within the time specified in the contract by the plaintiff. Sufficient answer to this contention is that the complaint alleges a tender of the full amount of the purchase price, and that he has been ready, able, and willing to comply with his part of the contract. But no tender was necessary. The contract discloses that it was incumbent on the plaintiff to signify his intention to take or reject the land by due notice in writing within ninety-four days, and that in case such notice would be served within such time, the plaintiff was to have thirty days within which to examine an abstract of the title thereto, and the defendant, within which to make deeds and close the sale; but the complaint alleges not only the service of the notice within the time, the demand for a deed, and that the plaintiff was then and ever since has been fully prepared to pay the purchase price in full in money, and tendered the same to the defendant, but that the defendant refused and ever since has refused to convey. It is elementary that an offer to per — 58 — form is rendered unnecessary when the party to whom the act is due first makes known his refusal to accept performance. Where a party resists the performance of a contract and insists he is not bound by the «contract to convey, no tender is necessary before suit is brought. Rev. Codes 1905, § 6679; Wright v. Young, 6 Wis. 127, 70 Am. Dec. 453; Gill v. Newell, 13 Minn. 462, Gil. 430; Gray v. Dougherty, 25 Cal. 266; Stanford v. McGill, 6 N. D. 536, 38 L.R.A. 760, 72 N. W. 938. 4. As near as can be gathered from the brief of appellant, the principal ground of appeal rests upon the theory that the contract of sale ■pleaded is insufficient to entitle respondent to a decree for specific performance thereof; in other words, that it does not state a cause of .action on which specific performance may rest. In support of this it ■'is said that the contract is one-sided, uncertain, and ambiguous, because it does not determine the amount to be paid down, when or where the balance is to be paid, whether it is to run for a long or short term of years, whether the balance is to be secured by a mortgage or otherwise, ■and thereby furnishes a wide ground for dispute of the parties as to its terms. (a) Section 6612, Eev. Codes 1905, provides that a party who has signed a written contract may be compelled specifically to perform it, though the other party has not signed it, if the latter has performed or offers to perform it on his part, and the case is otherwise proper for enforcing specific performance. See also Cummins v. Beavers, 103 Va. 230, 106 Am. St. Rep. 881, 48 S. E. 891, 1 Ann. Cas. 986; McPherson v. Fargo, 10 S. D. 611, 66 Am. St. Rep. 723, 74 N. W. 1057; Gira v. Harris, 14 S. D. 537, 86 N. W. 624. Hence the objection that "the contract is one-sided or unilateral is not well taken. Ide v. Leiser, 10 Mont. 5, 24 Am. St. Rep. 17, 24 Pac. 695; Frank v. Stratford-Handcock, 13 Wyo. 37, 67 L.R.A. 571, 110 Am. St. Rep. 963, 77 Pac. 134; Cheney v. Cook, 7 Wis. 413. (b) The option contract, standing alone, may be somewhat uncertain as to the amount to be paid in cash, and the terms and conditions -of the security to be given if only a partial payment is made, but it pro■vides that the vendee may pay all cash, and by his election to pay all cash he made what was in the option contract uncertain, certain. The combination of the option contract and the acceptance by the vendee constitutes the contract under which respondent is seeking to recover. Hntil — 59 — lie elected, which he did, within the time permitted, vizninety four •days, to accept the option given him, it was a one-sided contract, but immediately on his making the acceptance in writing it became a bilateral contract; the terms, which theretofore had been uncertain and were left to be adjusted or to be determined upon by the vendee within certain limits, became definite. The permission given him by the option to pay all cash was accepted, and this renders the allegations of the complaint with reference to oral agreements regarding terms if only part cash ¡should be paid surplusage. Such allegations are wholly unnecessary and irrelevant to the facts disclosed by the complaint, and made so by the cash offer. De Rutte v. Muldrow, 16 Cal. 505; Wardell v. Williams, 62 Mich. 50, 4 Am. St. Rep. 814, 28 N. W. 796; South & North Ala. R. Co. v. Highland Ave. & Belt. R. Co. 98 Ala. 400, 39 Am. St. Rep. 74, 13 So. 682; Brown v. Munger, 42 Minn. 482, 44 N. W. 519; Rude v. Bevy, 43 Colo. 482, 24 L.R.A. (N.S.) 91, 127 Am. St. Rep. 123, 96 Pac. 560; Ross v. Parks, 93 Ala. 153, 11 L.R.A. 148, 30 Am. St. Rep. 47, 8 So. 368; Watkins v. Robertson, 105 Va. 269, 5 L.R.A. (N.S.) 1194, 115 Am. St. Rep. 880, 54 S. E. 33. (c) It is further objected under this head that there is a lack of mutuality, and that the contract conies within the terms of § 6610, Rev. Codes 1905, reading as follows: “Neither party to an obligation can be compelled specifically to perform it, unless the other party thereto has performed, or is compelled specifically to perform, everything to which the former is entitled under the same obligation, either completely or nearly so, together with full compensation for any want of entire performance.” There is no merit in this proposition. What we have said under “b” is here applicable. Had the respondent not accepted the offer of the appellant, there-might be some merit in this contention, but the instant that the offer was accepted, within the definite term of the contract, it became a mutual contract, and could have been enforced against the respondent had he thereafter failed to perform. Kerr v. Day, 14 Pa. 112, 53 Am. Dec. 526. Many authorities hold that an option to buy or sell real estate, more than any other form of contract, contemplates a specific performance of its terms, and we find no authorities that sustain appellant’s contention that the contract is not mutual after it has been accepted by the vendee. See Watts v. Kellar, 5 C. C. A. 394, 12 U. S. App. 274, 56 Eed. 1, 36 Cyc. 626; Frank v. Stratford — 60 — Hancock, 13 Wyo. 37, 67 L.R.A. 571, 110 Am. St. Rep. 963, 77 Pac. 134; Warren v. Castello, 109 Mo. 338, 32 Am. St. Rep. 669, 19 S. W. 29; Vassault v. Edwards, 43 Cal. 458; Hall v. Center, 40 Cal. 63. 5. The vendee plaintiff in an action for specific performance may recover damages for withholding possession, and delay in conveying: when performance is decreed. 36 Cyc. 753; Pillsbury v. J. B. Streeter, Jr. Co. 15 N. D. 174, 107 N. W. 40. The complaint in this case is not open to any of the objections made, by the appellant. The order of the District Court overruling appellant’s demurrer is affirmed. Mier v. Hadden, 148 Mich. 488, 118 Am. St. Rep. 586, 111 N. W. 1040, 12 Ann. Cas. 88. A. G. Burr, Judge of the Ninth Judicial District, sat in place of Morgan, Ch. J., hot participating.