Hamilton v. Hulett

Dickinson, J. The cause of action set forth in the complaint is that in March, 1891, the plaintiff sold to the defendant an undivided one-half interest in a specified tract of land, for which the defendant promised to pay the sum of $1,700, of which only $1,480.99 has .been [211] paid; that in May of the same year the plaintiff sold to the defendant the other undivided one-half interest in the same lands, for which the latter promised to pay the sum of $1,600, of which only $666.66 has been paid; and that the plaintiff has caused a conveyance of the whole to be made to the defendant. A recovery of the balance of the unpaid price is sought. Without referring particularly to the allegations and denials of the answer, we deem it sufficient to say that it puts in issue the first of these alleged sales and promises to pay. As to the other alleged sale, the answer is that the purchase was not from the plaintiff, but from her husband, for the price of $1,600; that the defendant agreed with him to pay the same, or whatever should be due to him, to his wife, this plaintiff, and that the same has been fully paid. The fact that the plaintiff caused a conveyance to be made is also put in issue. The complaint is not subject to the objection that it states no cause of action. It is perhaps indefinite as to the precise nature of the “interest” alleged to have been sold, and for which the defendant promised to pay; nor does it disclose who was the person from whom the conveyance to the defendant was procured to be made. But it was not insufficient as a pleading by reason of such omissions, though it might have been subject to motion to make more definite and certain its allegations. Nor was it essential that it should be alleged in the complaint, or shown by evidence, that the plaintiff owned the estate or interest contracted to be sold. It was enough that she showed that she had procured a conveyance to be made to the defendant, which he had accepted as a performance of the agreement. The evidence justified the conclusion that the defendant made the agreement of purchase as alleged in the complaint; that the plaintiff procured a conveyance to be made by one Bardon to the defendant; and that the defendant accepted the same as a performance of the agreements of sale. That the conveyance from Bardon to the defendant was made and accepted was conclusively shown. In view of this fact, it is immaterial that the relations of Bardon with the plaintiff in respect to the land were such that he was under no legal obligation to convey either to her or to the defendant. After a eon212 tract has been fully executed, it is immaterial that. it was not enforceable because not made or evidenced in the manner prescribed by law. McCue v. Smith, 9 Minn. 252, (Gil. 237.) The evidence, going to show that there had been a contract or agreement to the effect that Bardon was to convey the land to the plaintiff upon certain conditions, was properly received, for the reason, if for no other, that it tended to show, in connection with other evidence, that the conveyance from Bardon to the defendant was made by the procurement or at the instance of the plaintiff. The defendant was not entitled to have his first and second requested instructions given to the jury, for their apparent import, in so far as they were relevant to the issues, was that the plaintiff’s right of recovery depended upon her having owned the land, or at least an equitable interest in it. That was not necessary, as has been already stated. The third requested instruction involved this error: that an agreement between the plaintiff and a third party (Warner) that he should have a one-fourth interest in the land would defeat the plaintiff’s right to recover the sum agreed by the defendant to be paid therefor. It was at least a question for the jury on the evidence whether, even though there had been some such understanding, the defendant had not accepted the conveyance of the property as a full performance of his agreement with the plaintiff. The ruling of the judge excluding further proof on cross-examination as to the custom or habit of the witness was apparently justifiable as a proper exercise of discretion in stopping a cross-examination upon a point which had been dwelt upon long enough. It is of no consequence that opposing counsel had not stated any reason for the objection which was sustained by the court. The affidavit concerning newly-discovered evidence was so far opposed by the counter proof that there was no error in refusing to grant a new trial on that ground. Order affirmed. (Opinion published 53 N. W. Rep. 364.)