Christiansen v. Aldrich , 30 Mont. 446 ( 1904 )

ME. CI1IEE JUSTICE! BRANTLY,

after stating the case, delivered the opinion of the court.

1. It is argued that the complaint does not state a case for specific performance, within the purview of Section 4410 of the Civil Code. In this we think counsel are in error. It is true, the facts and circumstances stated do not bring it within the provisions of subdivisions 1, 3 and 4 of this section; but the allegation of a breach of the contract to convey the land described is itself sufficient to raise the presumption that pecuniary compensation would not afford adequate relief. This brings the case within subdivision 2 of the section. It is not necessary for the plaintiff to allege special circumstances showing that he has no adequate remedy at law. (Ide v. Leiser, 10 Mont. 5, 24 Pac. 695, 24 Am. St. Rep. 17; Baumann v. Pinckney, 118 N. Y. 604, 23 N. E. 916; Pomeroy, Equity Jurisprudence, Secs. 221, 1402; Civil Code, Sec. 4413.) Whether specific performance of a contract to purchase land will be compelled in tire particular case depends upon the circumstances, and the relief will be granted or withheld, in the discretion of the court, though the plaintiff may have another remedy at law. (Baumann v. Pinckney, supra; Brown v. Haff, 5 Paige, 235, 28 Am. Dec. 425.)

It is argued that the complaint is defective in failing to allege that the defendants were the owners of the land in controversy at the time the contract was made. If it be a fact that the defendants entered into a contract which they could not perform, or that, sincelt was made, they have placed themselves in such a position that they cannot perform it, this is a matter of defense, and the duty to allege and prove it devolves upon them. (Ide v. Leiser, 10 Mont. 5, 24 Pac. 695, 24 Am. St. Rep. 17; Greenfield, v. Carlton, 30 Ark. 547; Waterman on Specific Performance, 89.) Conceding, however, that it should appear from the complaint that the defendants were the owners at the time the contract was made, and that the complaint is defective in failing to> allege this fact, the answer of defendants aids the complaint by the allegation that since the contract was made the defendants have sold and conveyed the land in controversy to' one Winter, who is now the owner and in possession of it, and has been since the said conveyance was made to him. This allegation carries with it the admission that the defendants were the owners at the time the contract was made, and thus cures the defect in the complaint. (Lynch v. Bechtel, 19 Mont. 548, 48 Pac. 1112.) Though the complaint might have been held bad on demurrer, yet, this admission being made, and tlie court having found for the plaintiff and entered a decree in his favor, the defendants may not be heard to urge on appeal that the complaint is fatally defective. (Hershfield & Bro. v. Aiken, 3 Mont. 442; Duignan v. Montana Club, 16 Mont. 189, 40 Pac. 294; Murphy v. Phelps, 12 Mont. 531, 31 Pac. 64; Northrop v. Boone, 66 Ill. 368.) At best, the objection is technical, and does not affect the substantial rights of the parties. It must therefore be disregarded, as falling within the spirit of Section 778 of the Code of Civil Procedure.

It is said that the complaint is defective for failing to show a, tender of the balance of the purchase money before the action was brought. It is undoubtedly the general rule that, if a part of the purchase price is still due and payable, the plaintiff seeking to have the conveyance compelled must allege and prove a tender of it, and bring it into- court. But the rule is not invariable. An exception to it is where it is apparent from the pleading that a tender would be useless. “Where the vendor claims to' have rescinded, repudiates and denies- the obligation of the contract, placing himself in such a position that it appears that, if the tender were made, its acceptance would be refused, then no tender need be made by the vendee. * * * In such case- it is enough if the plaintiff offer by his bill to bring in the money when the amount is liquidated and he has his decree for performance.” (Brock v. Hidy, 13 Ohio St. 306. See, also, Deichmann v. Deichmann, 49 Mo. 107; Crary v. Smith, 2 N. Y. 60; Hunter v. Daniel, 4 Hare’s Eq 420; 20 Ency. Pl. & Pr. 455; Tobin v. Larkin, 183 Mass. 389, 67 N. E. 340.)

• The complaint alleges that the defendants violated their contract by withdrawing the deed from the bank and refusing1 to make the conveyance. It is clear from this statement that a tender would have been useless. The bank was authorized to-hold the deed subject to the order of the defendants upon payment of the balance of the purchase price. Plaintiff could make the tender to the bank only. When the deed was withdrawn, the bank was no longer authorized to receive payment, nor was there any other person authorized to receive it under the terms of the contract. A tender to the bank, therefore, would have been a mere form, and of no avail. The plaintiff was, not bound to hunt up the defendants and tender it to them. Furthermore, the plaintiff tendered the money in court, paid it to the clerk, and demanded the deed. He thus submitted himself to the court for all purposes in the case. (Hunter v. Daniel, supra.) Hnder the circumstances, this is sufficient — especially so, since it appears from the evidence that the defendants had removed from the state, and were absent at the time when plaintiff desired to make the payment.

2. Again, it is urged that the contract is void under Section 2342 of the Civil Code, which declares “that no agreement for the sale of real property or any interest therein is valid, unless the same, or some note or memorandum thereof, be in writing and subscribed by the party to be charged, or his agent thereunto authorized in writing.”

The defendants in their answer admit the making of the contract, but rely upon the defense that the plaintiff breached it on his part by his failure to pay the balance of the purchase price within seven days, the time in which they állege payment should have been made; and, as a counterclaim, they allege damages for this breach, and ask judgment for the amount alleged. The statute is not pleaded, and, so far as the record shows, the defendants did not in the district court rely upon it. They cannot now avail themselves of this defense. The rule prevails in this state that, where the making of the contract alleged in the complaint is .put in issue by the answer, the defendant may avail himself of the statute without pleading it- (Ryan v. Dunphy, 4 Mont. 342, 1 Pac. 710; Sweetland v. Barrett, 4 Mont. 217, 1 Pac. 745; Code of Civil Procedure, Secs. 3270, 3274.) A different rule applies, however, when the making of the contract is admitted, as in this case, and other defenses are relied upon to defeat the action. In such case the statute is not available unless specially pleaded. (Maybee v. Moore, 90 Mo. 340, 2 S. W. 471; Iverson v. Cirkel, 56 Minn. 299, 57 N. W. 800; Connor v. Hingten, 19 Neb. 472, 27 N. W. 443; Barrett v. McAllister, 33 W. Va. 738, 11 S. E. 220; Duffy v. O’Donovan, 46 N. Y. 223; Cozine v. Graham, 2 Paige, 177.) It is therefore not necessary to consider whether the contract is within its terms.

3. The next point urged is that the court should have granted the defendants’ motion for judgment on the pleadings, .because new matter set up in the answer was not put in issue by the replication. This point is disposed of by the remark that nothing alleged in the answer, except the counterclaim for damages for breach of the contract, required a replication. As noted in the statement of facts, this feature of the case was by stipulation abandoned at the hearing. The allegations of the answer, except in one particular, amounted to no more than an issue upon the averments in the complaint. With reference to this feature of it — the alleged sale to Winter — it may be said that the allegations are not sufficient to state a defense, in that it does not appear therefrom whether the sale was made before or after the commencement of the action, nor what were the facts as to consideration paid by Winter, and his notice of plaintiff’s equity. If it was made before the commencement of the action, the defendants could not perform the contract. If made after that time, and the filing of a notice of lis pendens by the plaintiff, it would not affect plaintiff’s rights, nor aid the defendants. To avoid the merits of the action, therefore, the allegations should be specific in their statements, so, as to inform the court what were the facts, and it could know' w'hether it might properly deny the relief demanded. The court properly overruled the motion for judgment.

4. Error is alleged upan the action of the court in permitting the amendment to the complaint pending defendants’ motion for judgment on the pleadings, and then denying defendants’ motion for a continuance. , The amendment was properly allowed. The only substantial addition made by it to the complaint w'as the tender of the unpaid purchase price and the demand for the deed; otherwise its effect was to render more specific tlie allegation of tbe readiness and willingness on tbe part of the plaintiff to perform tbe contract on bis part. It does not appear from tbe record tbat tbe defendants were not able to meet tbe allegations contained in tbe amendment, or tbat they were put to a disadvantage by it. Indeed, it appears, on tbe contrary, tbat they were fully prepared to try tbe case on its merits. Tbe court offered to postpone tbe bearing until tbe next term, if tbe defendants would make it manifest tbat they were not ready to piroceed witb tbe trial. This they, through their counsel, declined to do. If the trial bad proceeded without tbe amendment, until the proofs were all in, and an application bad been made to amend, tbe court should have allowed it, so as to make the pleadings conform to tbe proof.

Counsel insist that tbe amendment should have been formally incorporated in tlie complaint, tbat they should have been served witb a copy, and that they should have been allowed tbe statutory time of twenty days in which to file an amended answer. It is true tbat tbe amendment shauld liave been incorporated in tbe complaint. Yet tbe trial proceeded as if such bad been tbe case, upon tbe issues framed by tbe amended complaint and tbe answer, -which put them in issue. The trial was upon the merits, with full opportunity, so far as tbe record shows, for tbe defendants to present all tbe evidence they bad touching tbe controversy. Such being tlie case, tbe judgment should not be reversed now upon the purely technical irregularity in the proceedings of tbe court witb reference to tbe amendment. (Code of Civil Procedure, Sec. 778.)

5. As to the point tbat tbe evidence does not justify tbe findings, we are of tbe opinion tbat it is amply sufficient. Tbe only controversy in tbe case arose upon tbe question whether tlie plaintiff was to make tbe payment within a reasonable time, as alleged by the plaintiff, or strictly within the seven days, as alleged by tbe defendants. In support of bis position tbe testimony of the plaintiff is clear and explicit, while tbe behavior of tbe defendants manifests tbat they did not regard tbe obligation of the plaintiff other than as he alleged it to be. The findings of the district court will therefore not be disturbed.

Other errors are assigned, but they are not noticed in the. briefs. We therefore do not notice them.

The record shows that the contract was fair and just, and equal in all its pai*ts; that, though the proceedings of the court were somewhat irregular, the cause was tried upon the merits; that the findings of the court are full upon all the issues involved ; and that the evidence fully sustains the findings. The judgment and order are therefore affirmed.

Affirmed.