Vought v. Porter , 168 Minn. 43 ( 1926 )

¹ Reported in 209 N.W. 642. Defendant appeals from an order denying his motion in the alternative for judgment non obstante or a new trial.

The facts leading up to and surrounding the alleged oral contract upon which the verdict was based are, in substance, these:

The deceased, Ole Reierson, had acted as agent in selling a farm of 160 acres in Iowa, near LeRoy this state, for Harry Peterson to plaintiff under a contract at the price of $23,200; $1,000 cash; $8,200 to be paid March 1, 1920, and balance by assuming two mortgages for $14,000 existing against the farm. The payment of March 1, 1920, was not met. In the meantime Reierson had become the legal owner of the farm, and on March 29, 1920, he entered a contract with plaintiff to take the place of the contract with Peterson. Thereunder plaintiff paid another $1,000 and agreed to pay $1,000 on or before August 1, 1920; $1,000 on or before November 1, 1920; and $5,200 on or before March 1, 1921, at which time deed was to be given and a purchase money mortgage for the balance of $14,000. It also appears that Reierson negotiated a sale of the farm for plaintiff to one Stultz. The terms of the sale do not appear, only this: Stultz gave plaintiff a note for $1,000 and a deed to 160 acres cut-over land in Wisconsin. The note and contract were left with Reierson, according to plaintiff's recollection, and he thinks the contract was assigned to Reierson but is not certain as to that. One Meyerhoff was a tenant on the farm in 1921, the lease is not in evidence but he claimed Stultz as landlord. He surrendered possession to Reierson and his tenant, one Menses, in March, 1922. In November, 1923, Reierson died. Defendant was duly appointed executor, and plaintiff filed a claim against the estate. The decision of the probate court thereon was appealed from. In the district court a complaint was filed which alleged in short that defendant as executor was indebted to plaintiff in the sum of $2,000 on account of the abandonment by plaintiff of his contract to purchase the farm mentioned from Reierson, that Reierson agreed to pay back to plaintiff the amount he had paid on the purchase of the farm for such abandonment, and that plaintiff thereupon wholly abandoned said contract and turned over the possession of the farm to Reierson. By amendment the agreement was alleged to have been made in the summer of 1921. The answer was in the main a general denial, with an admission that in November, 1919, Reierson acquired ownership of the farm from Peterson.

The assignments of error may be treated under three heads: Is the alleged oral contract unenforceable because within the statute of frauds? Was it error to exclude evidence as to business habits of Reierson? Was the evidence sufficient to justify the verdict?

Prior decisions determine that a vendee who has but partially performed a contract to purchase lands may abandon the same so as to end all his right and interest in or to the lands without there being any writing executed to that effect by the parties. Smith v. Glover, 50 Minn. 58, 52 N.W. 210, 912; Mathwig v. Ostrand, 132 Minn. 346, 157 N.W. 589; Bringgold v. Stucky,162 Minn. 343, 202 N.W. 739; Graceville State Bank v. Hofschild, 166 Minn. 58,206 N.W. 948. True, a legal abandonment is not to any person or party, but abandonment coupled with surrender of possession may serve as consideration for a promise to pay back money otherwise forfeited to the vendor. We do not consider the contract declared on within the statute of frauds.

Defendant's offer to show that Reierson's custom and habit was to pay his debts promptly was rejected and error is claimed. The evidence was offered as tending to negative the existence of a promise to pay money which the habits of Reierson long before this would have redeemed. How far litigants may go in the introduction of evidence bearing upon the likelihood that an oral contract, which the one asserts and the other party denies, was made where, as here, no direct evidence is available, because one party to the alleged contract is dead and the other is precluded from testifying, is largely discretionary with the trial court. Chrysler v. Randolph S. G. Co. 155 Minn. 297, 193 N.W. 677; Dun. Dig. § 325. The exclusion of such testimony will rarely suffice for a reversal. It should not here, because the offer was not full enough to show much of a bearing upon the issue. Had it gone to the extent of showing that plaintiff had been financially hard pressed and Reierson had been affluent during all the time since the summer of 1921, the ruling might well have been different. Fisher v. Plimpton, 97 Mass. 441, would then have been in point.

The majority of the court are of the opinion that the verdict is without adequate support. As already indicated the contract or promise to pay plaintiff is not evidenced by any writing, nor did anyone testify to being present and hearing Reierson make such a promise to plaintiff. All there is in the record is this testimony by Mr. and Mrs. Meyerhoff, tenants of Stultz who had been in possession of the farm and were moving off in March, 1922, at which time Ole Reierson was there. Mr. Meyerhoff testified: "I was getting ready for moving and he [Reierson] would like to have me stay. He was going to fix it up. I said: ``Isn't Vought going to own the farm?' He said: ``No, I am going to take it back, intend to take it back and pay him back what I owe him.' He didn't say how much. * * * He commenced fixing the barn when I was moving." On cross-examination he testified that Reierson said: "He was going to pay him his money back." The court put this question to the witness: "Did he say that he had taken back the land or was going to take it back?" Ans. "He said he was going to take the place back."

Mrs. Meyerhoff testified: "He was talking about that he was going to take the place back and he was going to fix it up and Mr. Meyerhoff asked if it wasn't Mr. Vought got the place and he said no, he was going to take it back and pay Mr. Vought his money back." At most these statements of Reierson relate to the future, to what he intended to do.

After the evidence was in, plaintiff asked for leave to amend the complaint so as to allege that the abandonment occurred in the summer of 1921. Hence, if the testimony of the Meyerhoffs is to be taken to refer to the past transaction claimed by the plaintiff, the ordinary and usual meaning cannot be given the language used by Mr. Reierson. Moreover the record is very inconclusive as to whether plaintiff had anything to abandon or any possession to surrender subsequent to May 19, 1921, when he sold to Stultz. He is not certain that he assigned the Stultz contract to Reierson, and it is not claimed that the latter promised to pay the $2,000 for an assignment of that contract, or that that was the one abandoned. Nor is it probable that at that time this would have been done, because Stultz had agreed to pay $175 per acre for the farm, so there was quite a profit for plaintiff, should Stultz carry it out. And, notwithstanding the recital in the extension agreement between plaintiff and Stultz that the latter was not to have possession of the farm until $5,000 had been paid by him on October 1, 1921, plaintiff testified that possession was given Stultz when he bought, and ever thereafter Stultz's tenant, Meyerhoff, was in possession.

We do not overlook the testimony that Reierson acted as agent in the sale of the land to plaintiff, also for plaintiff in the sale to Stultz, that plaintiff turned over to him the $1,000 note Stultz gave plaintiff as part payment, and that he thinks the contract he made with Stultz was in Reierson's keeping. The fact remains that the only evidence of an agreement to refund the money paid, only half of which Reierson had received as vendor, is an expressed intention of Reierson to do so in the future. And this is inconsistent with the claim of plaintiff that the agreement had been made months before. The improbability of such an agreement existing since the summer of 1921, with no demand for payment until 1924, after Reierson's death, is in no manner explained away in this record. Not being satisfied that all the evidence available has been adduced, there should not be judgment non obstante but a new trial.

There was no such variance in the complaint as amended and the proof that defendant may justly complain.

The order is reversed to the extent that a new trial is granted.