Laugharn v. Bryant

SHINN, J.,

pro tem.

Appeal by defendant from a judgment in favor of plaintiff in action for specific performance.

The complaint in this action alleges the appointment of plaintiff as trustee of the bankrupt estate of one J. F. Bryant ; that a judgment was recovered by plaintiff as trustee, in the United States District Court, against W. J. Bryant, defendant herein, brother of said bankrupt, for the recovery of a large number of parcels of real property, which, by the judgment, were declared to have been fraudulently conveyed by the bankrupt; that the judgment declared the title to the property to be in the trustee in bankruptcy and awarded him some $600 in costs; and that thereafter defendant herein offered to settle said judgment and compromise said proceedings by the payment of $7,500, of which $5,000 was to be paid in cash and $2,500 by a note payable in one year at seven per cent per annum, to be secured by the real property recovered in the action in the United States District Court, in consideration for which the judgment for money was to be satisfied and such conveyances made to said W. J. Bryant, by the trustee, as should be necessary to carry out-the terms of the settlement. It is alleged that the offer was accepted by the referee in bankruptcy and by the plaintiff, as trustee, and notice of said acceptance given to defendant, and that the defendant, although frequently promising so to do, has never paid the purchase price of the property, or any part thereof. A separate cause of action alleges an indebtedness of the defendant in the sum of $7,500, for money had and received, and for and on an account stated and for money had from the defendant “on account of a settlement and compromise” made between plaintiff and defendant.

The prayer of the complaint was for $7,500 damages, and interest, on the first cause of action, and for $7,500, and interest, on the second cause of action, and for general relief.

[723]

Although the prayer of the complaint under the first cause of action is for damages, yet we view the cause of action attempted to be stated as one for specific performance. No damage is alleged to have been sustained by plaintiff on account of the breach of the agreement, nor are any facts alleged from which damage may be inferred. The action was tried on the theory that it was for specific performance —at least it was not tried on any other theory—and in the trial the question of damages did not arise.