Mann v. Higgins

McFarland, J. J. — The complaint avers that for a certain consideration named defendant agreed to pay plaintiff the sum of six thousand four hundred dollars, and that two thousand two hundred dollars of said amount was to be satisfied by the conveyance to plaintiff by defendant of certain described laud which defendant agreed to so convey, leaving four thousand two hundred dollars due plainuff after such conveyance. There was also an averment of an agreement by defendant, made in the same contract, to purchase certain personal property from plaintiff for $475; but as that item was abandoned by plaintiff at the trial, it need not be further considered. Certain special issues were submitted to a jury, who found them favorably to plaintiff. The court adopted them, and made other findings, and judgment was given to plaintiff for the four thousand two hundred dollars, and decreeing a conveyance from defendant to plaintiff of the said lands. Defendant appeals from the judgment, and from an order denying a new trial.

Appellant demurred to the complaint, on the grounds that several causes of action were improperly joined, and that the complaint was ambiguous, unintelligible, and uncertain. He contends that the court erred in not sustaining these grounds of demurrer; but the rulings of the court on these subjects are not specified as errors in the statement on motion for a new trial. Assuming that they can be considered here, although not contained in the assignment of errors, we think that the points were not well taken. As the alleged contract was an entirety, and defendant’s promises were all founded upon the same consideration, we think that, not only could plaintiff have judgment in the same action for the money and [68]for the specific performance of the agreement to convey, but that it was his duty to unite them both in the same action if he wished to enforce both. Neither do we think that the complaint was fatally defective on account of ambiguity, uncertainty, etc.

And we think, also, that the point that the complaint does not state facts sufficient to constitute a cause of action cannot be maintained. The facts alleged as constituting the consideration of defendant’s promises are these: That “ plaintiff and defendant entered into a certain agreement, whereby it was agreed between them that plaintiff should use his knowledge and influence in behalf and render certain services to defendant, to enable defendant to take the preliminary steps to acquire from the United gtates for himself, or those whom he might name, the title to ” certain named legal subdivisions of government land containing 320 acres; and that he did use such knowledge and render such services, etc., by which defendant was enabled to, and did, take such preliminary steps as will enable him to acquire such lands. We think this was a sufficient statement of a cause of action.