Simplot v. Simplot

Wright, J.

That the master found the facts correctly under the testimony submitted, we entertain no doubt. The paramount inquiry is, whether under the pleadings complainant was entitled to the relief granted. '

*453 If the master’s report and decree of the court w.ere based upon the proposition that respondent practised fraud in inducing complainant to change the original verbal agreement and take the Cooley indebtedness, we are prepared to concur therein, for we think the charges in the original bill on this subject are fully and sufficiently established. But if this is not true, the case can be placed beyond controversy upon the agreement of settlement. Of the existence of this agreement there is no doubt; indeed, it is admitted in all its terms by both parties. By this it is expressly agreed that the land shall be re-conveyed, and that each party shall surrender to the other the notes and securities held under the contract of sale. And it is not true that the agreement to set aside the award set aside the contract also. Two distinct matters are contained in the instrument. By the one the parties stipulate that each shall return to the other what was obtained in the trade. By the other the amount to be paid for improvements was submitted to arbitration. The agreement to set aside the award did not even revoke the submission. And certainly it could not have the effect of rescinding an independent and distinct contract, though contained in the same writing. The true construction of the writing is, that the parties agreed upon the terms of settlement in every respect, except as to the improvements. The validity of the contract is not attacked, and no reason is shown why it should not be enforced.

This agreement provided that the award should be made within thirty days of its date. It was thus made and set aside by mutual consent. This action was commenced long after the expiration of the thirty days, and after it had been set aside. No further steps were ever taken or sought to be taken under the submission by either party. Under such circumstances it was not incumbent upon complainant to first apply to have the arbitrators act or others appointed and a new award made. The agreement was only *454 one method of ascertaining the amount to be paid for improvements, and an appeal to the courts was not thereby concluded.

As to the amount found it is objected, 1. That the improvements should have been allowed for, without any deduction for rent; and, 2. That the rent allowed was exorbitant. The language of the submission is, that the arbitrators “ shall decide upon an examination of the entire transaction of sale, what amount, if any, shall be paid by said John to Francis for improvements that may have been made by said Francis on said farm. ” It seems that there were improvements on the premises, consisting of houses, fencing and out-buildings, prior to the purchase. One witness places the rent at $100 per year without fences or buildings. Another at $250, as it was while occupied by respondents, and of but little, if any, value without fence or buildings- The master allowed $165, yearly rent, and in view of the improvements on the premises at the time possession was taken, and testimony as to the value of the rent, this was not exorbitant. Then as to the allowance of any rent, we think that a fair construction of the contract is that this was to be taken into the account. The “ entire transaction of sale” was to be examined, and the amount, if any, to which Francis was entitled for his improvements thus ascertained. The decree then being warranted by the ' testimony, we return to the inquiry whether the pleadings justify it. And it will be observed that the respondents themselves first set up the written agreement of settlement. They also put in a claim for improvements in the case that the deed should be set aside. By their answer also, they ask such relief, order and decree as the facts and good conscience may require. The prayer of the amended bill is, in the alternative, that the respondents either specifically perform the required agreement, or, in default thereof, that the deed, &c., be declared canceled, and for general relief. *455 The rule is correct that the' decree must be predicated upon the allegations of the pleadings, and if the answer and evidence are directly opposed to the allegations of the bill, relief will not be granted. But such relief as the case stated in the body of the bill, (and this is to be considered in connection with the answer when it asks affirmative relief,) will justify, will always be granted. And then under the prayer for general relief, such decree will be entered as i& warranted by the facts stated, beyond that specifically asked.

Applying these plain and well settled rules we find no difficulty in concluding that the relief granted was warranted by the pleadings. It in effect was no more than what .was asked by respondents themselves, And then under the alternative prayer, and the prayer for general relief, contained in the original bill and amendment thereto, the court was also justified in decreeing a cancellation or surrender of the evidence of indebtedness, and adjusting-the question of rent.

Affirmed.