Dickie v. Steiger

COOPER, J.

This is an appeal from a judgment entered in favor of defendant, by default, plaintiff having declined

[624]

to amend after an order made sustaining defendant’s demurrer to the complaint. We conclude that the demurrer was properly sustained. The complaint states that the plaintiff, being the owner of the premises described therein, in which were large and valuable deposits of lime or cement rock and clay, suitable for use in making Portland cement, entered into a contract in writing with defendant on the fifth day of November, 1900, whereby the defendant was given sole control of the entire output of said lime or cement rock and clay for the term of twenty years upon certain terms and conditions, which are not fully stated, but by which the plaintiff was to derive an income from a share of the profit of the said products of said land; that the contract was recorded with the county recorder of the county in which the land is situated and thus clouds the plaintiff’s title. That defendant obtained the said contract by representing to the plaintiff that he and his associates were possessed of large means and desired to and would erect large factories thereon and employ hundreds of men, and that plaintiff’s income under the arrangement would be the annual sum of from seven to twelve thousand dollars; that said representations and promises were false and made with the intent to deceive and defraud the plaintiff and with no intention on the part of defendant of performing them. That plaintiff at the time of entering into said contract was sixty-two years of age, infirm in mind and body and unable to properly conduct his business affairs; that plaintiff afterward found a purchaser for said property who was ready, able and willing to purchase the same, but that the said agreement, so recorded, clouded plaintiff’s title and thus prevented a sale, and that defendant refused to release the plaintiff from said agreement; that because of plaintiff’s necessities and the fear of losing the contemplated purchaser, the plaintiff did not have time to bring suit in the ordinary course to cancel said contract and remove the cloud from said title, and he was compelled to pay and did pay to defendant the sum of $1,500 to procure a release of said contract so that the sale might be consummated. Judgment was prayed for $12,000 damages, for general relief and for costs.