Welch v. Bigger

SULLIVAN, J.

This action was brought to remove a cloud from the title to lots 6 and 7 in block 3, of Turner’s Addition to Kimberly, Twin Falls county, and for $1,000 damages.

It appears from the record that on or about January 30, 1912, plaintiff Welch, who is respondent here, and appellant Bigger, entered into a verbal contract for the exchange of the lots above described, owned by Welch, and certain real estate owned by Bigger in the town of Payette, Canyon county; that appellant Turner, who was cashier of a bank in Kimberly, was called upon to draw up a contract between Welch and Bigger for the exchange of said lots in accordance with the oral agreement, and he drew up two separate contracts in regard to the matter, neither of which contains the oral agreement entered into by Welch and Bigger; that it is admitted by both Welch and Bigger that said written contracts which were prepared upon printed forms do not con *172 tain the essential features of the oral contract. It is claimed by Welch that Bigger was to procure an abstract of title of the Payette property -and execute all of the papers necessary for the transfer of the saíne to the plaintiff during the week following January 30th, and pay him $700 in cash and assign-to him a certain insurance policy and water stock in addition to a clear title to the Payette property.

It appears that the appellant Bigger failed to comply with the terms of said oral contract, and had filed for record in the county recorder’s office of Twin Falls county the contract which was delivered to him by appellant Turner, on March 13, 1912. The .allegations of the complaint show that said contract was procured to be signed by Welch through deceit and conspiracy of Bigger and Turner, and that Welch had confidence in Turner and took his word for what said contract contained and that he did not read it before signing. A short time after respondent learned that said written agreement had been filed' for record, he brought this suit to remove the cloud from the title to said lots in Kimberly. The court overruled demurrers to the complaint. Thereafter the appellants each filed separate answers to the complaint in which they admit that the written contract so executed did not contain the essential features of the oral contract, to which answers demurrers were filed. After hearing the matter, 'the court sustained the demurrers and the appellants refused to answer further, whereupon the court granted respondent’s motion for judgment on the pleadings and entered judgment and decree quieting the title to said lots in the plaintiff, and gave him a judgment for damages in the sum of $999. This appeal is from that judgment.

The appellants assigned as error the overruling of their' demurrers to the complaint. The grounds of said demurrers were, first, that the complaint did not state facts sufficient to constitute a cause of action; second, that there was a misjoinder of parties defendant, and, third, that there was a misjoinder of causes of action. There is no merit in this assignment of error, as the complaint states a cause of *173 action; there is not a misjoinder of parties defendant, nor a misjoinder of causes of action.

The second assignment is that the court erred in sustaining plaintiff’s demurrer to the answers and cross-complaints of defendants. It is conceded that the contract, which was the basis of this action, was oral, and was for the exchange of real property. This would place that contract within the statute of frauds and make it such a contract as could not be enforced. But it is contended by counsel for appellants that appellant Bigger proceeded to perform his part of said contract by paying off the mortgage on his own property and getting an abstract of title. The acts which it is contended Bigger did in regard to this matter are not such acts as would take the contract out of the statute of frauds. Therefore, since no action could be maintained for the enforcement of said oral contract, the court did not err in sustaining said demurrers to the cross-complaints. The answer denies by way of negative pregnant certain allegations of the complaint, but since it clearly appears from the record that the contract for the exchange of said real estate came within the statute of frauds, and could not be enforced, the cloud cast upon plaintiff’s two lots by the recording of a purported contract that never was entered into was no defense whatever to this action. The denials in the answer were not sufficient to make an issue of fact. And the denial in the answers in regard to the amount of damages alleged to have been sustained by reason of appellant’s filing for record a purported contract that had never been entered into was simply a denial that the plaintiff had sustained “ damages in the sum of one thousand dollars.” The answer does not deny that the plaintiff had sustained damages in the sum of $999. It simply denies that plaintiff sustained damages in the sum of $1,000. The denial in Bigger’s answer is as follows: “And denies that by reason thereof the plaintiff has been damaged in the sum of one thousand dollars.” And in appellant Turner’s answer the denial is as follows: “The defendant further denies that the plaintiff has been damaged in the sum of one thousand dollars by reason of the acts of this *174 defendant.” Such denials would be an admission that the plaintiff had sustained damages in any sum less than $1,000, or an admission that plaintiff had sustained damages in the sum of $999. That, no doubt, was the view the trial court took of these -denials.

(July 3, 1913.) Liquidated Damages — Proof of — Before Judgment. 1. In an action for unliquidated damages, judgment cannot be entered on motion even though no defense is disclosed by the answer, and unliquidated damages must be proved before judgment can be legally entered therefor.

From the whole record we are unable to find any reversible error in it, and for that reason the judgment must be affirmed, and it is so ordered, with costs in favor of respondent.

Ailshie, C. J., and Stewart, J., concur.