Carey v. Campbell

177 N.W. 372, 45 N.D. 273, 1920 N.D. LEXIS 121

• Court: North Dakota Supreme Court
• Decided: April 6, 1920
• Status: Published

Opinions

Robinson, J.

This is an appeal from a judgment for the specific performance of an alleged contract to sell plaintiff lots 9 and 10, in section 14, township 158, range 87, for $500. No‘payment was made nor was any possession given under the alleged contract. The parties remained in precisely the same condition as if they had not attempted to contract. It was made entirely by correspondence, which shows that there never was a compliance with the contract.

Exhibit A.

Gist of Exhibits.

E. T. Carey, Dealer in Land and Live stock.

Donnybrook, N. D., Dec. 25.

I am informed you own the old Commercial Hotel at this place. I might try to sell.

E. T. Carey.

Exhibit B.

Crookston, Minn., Dec. 30, 1918.

E. T. Carey,

Donnybrook, N. D.

I own thé hotel property and furniture. If I can get $700 cash will let it go and pay you $25.

D. J. Campbell.

Exhibit C.

D. J. Campbell,

Crookston, Minn.

I note you will take $700, and give $25 for selling your hotel property. It is no doubt worth that, but I don’t know anybody that I can sell it to and would not care to bother with it at that price, though I would give you $500 and would want abstract showing good title.

Exhibit D.

Crookston, Minn. Jan. 2, 1919.

You say you will give $500. Well, now, my boy, the property is yours. I inclose abstract. The affidavits are an easy matter to get from someone in your town. You can get them when you wish, but I will not stand expense. If I am going to give it away, I want $500 net to me, and want to get if off my system within the next few days; You can make out deed on N. D. form and send it along and send money to First National Bank of Crookston, Minn.

Exhibit E.

Telegram.

Crookston, Jan. 6, 1919.

I have sold hotel property.

Return abstract at once.

Exhibit G.

Donnybrook, Jan. 8, 1918.

First National Bank,

Cro'okston.

We inclose you our cheek of $500, payable to D. J. Campbell, and which you are authorized to deliver him when the inclosed déed to E. T. Carey has been properly executed and acknowledged. You will collect from Mr. Campbell your charges.

’A. W. Spencer, Cashier.

Jan. 7, 1919.

J. Campbell,

I have this day commenced action for specific performance and filed notice of lis pendens.

On January 8, 1918, the Crookston bank received and returned the blank deed and $500 check. The deposition of the cashier and Mr. Campbell shows that if Campbell would have accepted the check the bank charges on it would have been from $2.50 to $5. Then, it appears that on January 6, 1919, the defendant, by telegram, revoked his offer to sell, and he never had an opportunity to accept $500 net to him.

So there was never any completed contract. But if there had been a full and complete contract, still, in the opinion of the writer, specific performance should be denied, because the case presents no equity, and does not appeal to the conscience of the court. In an action for specific performance there should be some showing beside a bare naked contract, a showing of the character and value of the property, or of part performance, or of something to appeal to equity.

True it is presumed that the breach of an agreement to transfer real property cannot be adequately relieved by pecuniary compensation. Comp. Laws § 7194. But that presumption may be rebutted and is rebutted and disproven by the letters of the plaintiff showing the character of the property. Specific performance will not be enforced unless the contract is just and reasonable and made for an adequate consideration. § 7198. In this case the proof fails to show any completed contract.

Judgment reversed and action dismissed, with costs of both courts.

Grace and Bronson, JJ., concur.