Kiger v. the McCarthy Co.

[309]

SHAW, J.

An opinion affirming the decision of the trial court was filed herein December 21, 1908. Thereafter appellant’s petition for a rehearing was granted, and the appeal is before us for further consideration.

The action is to enforce specifically a contract for the purchase of real estate. The complaint, which contains a copy of the contract, alleges that plaintiff tendered to defendant the amount due under and in accordance with the terms thereof, and that she fully performed all other conditions imposed thereby, and demanded from defendant a conveyance of the property in accordance with the terms of said contract ; that defendant then and there refused to convey the same and ever since has refused so to do. The answer admits the tender; denies that defendant refused and continues to refuse to convey the property, but alleges at the time of the tender defendant did execute and offer to deliver to plaintiff a deed of conveyance substantially in the form called for by the contract, but that plaintiff refused and still refuses to accept the same. Defendant further alleged “that it is now ready, willing and able, and hereby offers to execute and deliver to said plaintiff a deed as called for by said contract or agreement upon the payment to it by said plaintiff of the balance due under said agreement.”

The court found all of the issues in favor of plaintiff, and found that defendant had refused to comply with plaintiff’s demand for a deed in accordance with the terms of the contract. It further found “that plaintiff is not willing to accept a deed, except in strict compliance with the contract; that the plaintiff is entitled to specific performance, but specific performance cannot be enforced because the defendant cannot convey the property as it agreed to convey it under the contract. ’ ’ From these findings the court found as a conclusion of law that plaintiff was entitled to judgment for damages only.

Plaintiff appeals from‘the judgment so rendered, and from an order denying a motion for a new trial.

Appellant’s chief contention is based upon the claim that the court’s finding to the effect that defendant was unable to specifically perform the contract is not within the issues raised by the pleadings and contrary to the admitted facts alleged in the answer.