[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] In sustaining and granting defendant's motion for judgment on the pleadings, the court erred in taking and considering facts or alleged facts dehors the pleadings. Edwards v. Jones, 49 Nev. 342; Southwest Cattle Loan Co. v. Nevada Packing Co., 53 Nev. 55; Hibernia Savings, etc. Society v. Thornton (Cal.), 49 P. 573; Way v. Shaver (Cal.), 84 P. 283; 21 Cal. Jur. 240, sec. 166 and n. 7. Appellant does not seem to question that a motion for judgment on pleadings is a proper procedure in a proper case. That such is the holding of the courts, we cite the following: 21 Cal. Jur. p. 234, sec. 163; Hudenthal v. Spokane I. Ry. Co. (Wash.),86 P. 955, 958; Vickers v. Vickers, 45 Nev. 274, 288; Southwest Cattle Loan Co. v. Nevada Packing Co., 53 Nev. 55; 21 R.C.L. p. 594, sec. 142; 49 C.J. 668, sec. 945.
It having been demonstrated to the trial court that plaintiff below had not performed the conditions precedent, as required in the option; and it appearing from the second amended complaint as amended, and the reply, that plaintiff was not entitled to maintain its action for specific performance; and it appearing from the amended and supplemental answer to the second amended complaint as amended that plaintiff had violated the terms and conditions of said option, among such violations being the mortgaging of the property and the failure to pay taxes; and it appearing that "Notice of Termination of Agreements as Corrected and Amended" had been duly served; and that plaintiff had failed and refused to comply with the requirements of said option agreement within the time authorized thereby — the action was dismissed, the option terminated, and defendant awarded its costs. *Page 11
OPINION This was an action in specific performance. Upon a former appeal in the action (52 Nev. 140, 283 P. 403), the judgment in favor of the plaintiff on the merits was reversed, and the cause was remanded for new trial upon two grounds: (1) That the trial court erred in permitting testimony concerning transactions with persons since deceased who represented the defendant corporation; (2) that a denial of a new trial without hearing or consideration of the motion on its merits by the judge succeeding the judge who rendered judgment and reassigned the case to him, was error.
Upon the filing of this court's remittitur in the court below, the defendant, with leave of court, filed an amended and supplemental answer to the plaintiff's second amended complaint, as finally amended, to which the plaintiff filed a reply, and the cause was set for trial. On the day of the trial, before any evidence was offered, the defendant orally moved for judgment on the pleadings. Upon objection, notice of motion and motion was reduced to writing and served upon the plaintiff. The plaintiff was notified that the defendant would move for judgment on the pleadings upon three grounds: (1) That the plaintiff's pleadings did not state facts sufficient to constitute a cause of action; (2) that plaintiff's pleadings did not state facts sufficient to entitle plaintiff to specific performance of the contract made the subject of the complaint; (3) that plaintiff's pleadings demonstrate that the defendant is entitled to judgment of dismissal of the action and for judgment terminating the contract counted on in the pleadings.
The court granted the motion and entered judgment upon the pleadings. The judgment is unusual in form, in that it contains a recital of each step taken in the proceedings on the motion, from which it was adjudged, ordered, and decreed as follows:
"That defendant's motion for entry of such judgment *Page 12 be, and the same is hereby, sustained and granted; that the above entitled action be, and the same is hereby, dismissed; that said option agreement, of date October 20, 1917, exhibit A to said `Second Amended Complaint, as Amended,' as altered and changed by the said agreement of date July 1, 1918, exhibit C to said `Second Amended Complaint, as Amended,' be and said option agreement is hereby, terminated; that the defendant do have and recover of the plaintiff its costs herein taxed, in the sum of $63.55.
"That, upon application of defendant, and good cause appearing therefor, it is further ordered: That the foregoing judgment be entered nunc pro tunc, as of December 18, 1930."
From this judgment the plaintiff has appealed.
1. We decline to follow the strategic arguments of learned and experienced counsel with respect to the regularity and validity of the proceedings had in the court below upon the motion for judgment on the pleadings. Upon the argument of this case, the Chief Justice suggested to counsel that for the purposes of a motion for judgment on the pleadings this court would consider only the pleadings. The settled rule is that upon a motion for judgment on the pleadings nothing dehors the complaint nor any defense thereto set up in the answer can be taken into account in disposing of such motion, but the motion is to be determined upon the same principles as would be a demurrer to the complaint upon the same ground. All the facts alleged are admitted for the purposes of the motion, and the court is to determine whether these facts constitute a cause of action. If the necessary facts are contained in the complaint, the objection that they are defectively set forth, or are in an ambiguous or uncertain form, will be unavailing. There must be an entire absence of some fact or facts essential to constituting a cause of action. Elmore v. Tingley, 78 Cal. App. 460, 248 P. 706; Hibernia S. L. Soc. v. Thornton, 117 Cal. 481, 49 P. 573. Since the movant's motion admits the truth of all well-pleaded facts in the complaint, together *Page 13 with all fair inferences to be drawn therefrom, and since, for the purposes of a motion of this character, the pleadings must be liberally construed, this court, after searching the complaint as on demurrer, is of opinion that the order and judgment under review must be reversed.
A summary of the material allegations of the complaint with its exhibits A, B, and C makes a voluminous document, subject to the criticism that it is not a concise statement of the facts, and is inartificially drawn with respect to the allegations of the performance of the covenants and conditions of the contract made the subject of the complaint. The complaint is divided into three causes of action, each predicated upon and arising out of a contract dated on October 20, 1917, exhibit A, as changed and amended on July 1, 1918, exhibit C. The complaint alleges that on October 20, 1917, the defendant made, executed, and delivered to one C.M. Wooster a certain option contract to purchase certain lands, water rights, and personal property situated in Pershing County, Nevada, a copy of which is attached to the complaint and marked exhibit A. The complaint alleges that on June 21, 1922, Wooster, for a valuable consideration, assigned and set over to the plaintiff exhibit A, and that plaintiff is now, and since which date has been, the owner of said contract as assignee of Wooster, and is the real party in interest in this action. Exhibit A shows that the defendant agreed to sell to Wooster the property mentioned for the payment of the consideration fixed therein at $202,003.25, $22,003.25 of which sum was paid by Wooster in cash, and the balance to be paid upon specified dates, with interest. The complaint alleges that under the provisions contained in said contract Wooster sold certain parts or parcels of the land described therein to one J.B. Daniel. The complaint in this connection alleges that, under express oral agreement made by Wooster with the defendant, Daniel gave to the defendant, for the mutual benefit of plaintiff and defendant, a mortgage on the property sold him to secure the payment of seven promissory purchase money notes for $9,180 each, with interest. The complaint alleges *Page 14 that under the contract, exhibit A, the moneys collected on the Daniel notes were, by the defendant, to be applied as payments on the defendant's indebtedness to the Humboldt Lovelock Irrigation Light and Power Company, for 16,589 1/5 shares of class "B" stock of said company. The complaint alleges said stock to be of special value which cannot be obtained in the open market. The complaint alleges that it was verbally agreed and understood that, after the defendant had collected three of the Daniel notes, all of the notes remaining due and unpaid were to be credited upon the purchase price of the property described in exhibit A; that the defendant credited all sums paid, and credited the face value of the Daniel notes remaining unpaid on the purchase price of the property, as orally agreed, but that defendant failed in making such credits to credit plaintiff with the sum of $6,609.60, interest collected on the Daniel note of November 1, 1920; that otherwise said contract, exhibit A, as changed and amended, exhibit C, was in all respects fully executed by both parties.
As a second cause of action, the complaint alleges, in substance, that at the time of the execution and delivery of exhibit A, and as a consideration for the execution thereof, the defendant orally agreed with C.M. Wooster that Wooster would use his best efforts to find purchasers for the land and property described in exhibit A and to complete the payment of the purchase price, and as compensation therefor, it was agreed that the defendant should pay Wooster as compensation for services so rendered, immediately upon completion of the payments of the full purchase price, the sum of $15,000, that Wooster had fully performed said services, and that the same, as rendered, were of the reasonable value of $15,000. The complaint alleges that, prior to suit, Wooster, for a valuable consideration, sold and assigned the said debt and claim for services to plaintiff, and that the plaintiff is the owner thereof and the real party in interest. The complaint, as finally amended, shows that on October 20, 1917, the defendant, by its secretary, F.M. Lee, delivered to Wooster *Page 15 a written agreement in the form of a letter directed to said Wooster, whereby the defendant agreed to pay Wooster $15,000 as a commission on account of services rendered in reference to the sale of the property described in exhibit A, said sum to be paid when said contract had been fully completed and performed by Wooster, and not otherwise or at all. The complaint alleges that, prior to suit, demand was made upon the defendant to credit the contract of purchase and sale of the property with $6,609.60 (Daniel note), and with $15,000, evidenced by the Lee letter, hereinabove referred to. In the amendment to the second amended complaint it is alleged, in substance, that the plaintiff is, and at all times had been, willing and able to perform any and all obligations arising out of said contracts, and hereby and herewith pays into court the sum of $13,477.29, being a sum equal to the difference between the actual cash payments received by defendant and the total amount of the balance for principle and interest owing on April 2, 1923, plus interest at 6 per cent on $12,849.83; that said sum was paid into court to abide the decree settling all the rights of the parties arising out of said contracts, exhibits A and C. The prayer of the complaint is for a conveyance of the property from the defendant to the plaintiff, and that all rights of the parties arising out of the contracts and matters alleged in the complaint be determined, and that any sum or sums found to be due plaintiff be declared a lien upon and satisfied out of the money paid into court, and plaintiff be given judgment for any deficiency unsatisfied.
The learned trial judge, in passing upon the movant's motion for judgment on the pleadings, took the position that the item of $15,000 alleged in the complaint as commissions under the F.M. Lee letter, and the $6,609.60 item of interest on the Daniel note, should not be allowed as credits on the purchase price of the property made the subject of the pleadings, and therefore on the pleadings technically counsels' motion was good. Whether *Page 16 the items claimed were allowable as credits on the purchase price of the property were material issues tendered in the complaint. It is well settled that, where a material issue is tendered by the pleadings, judgment on the pleadings is improper. Parks v. W.U.T. Co., 45 Nev. 411, 197 P. 580, 204 P. 884; 49 C.J. 670. In view of the allegations of the complaint relative to the two claimed credits, for the purpose of the movant's motion judgment could not be rendered on the pleadings. This court in one case has had occasion to hold that a motion for judgment on the pleadings raises a question of law only, and should be sustained, when, under the admitted facts of a pleading, the moving party would be entitled to a judgment on the merits. Edward v. Jones,49 Nev. 342, 246 P. 688. Clearly no such case is presented by the bill or complaint under review as would entitle the defendant to judgment on the merits. The trial court, in rendering final judgment, dismissing the action and terminating the contracts made the subject of the pleadings, apparently entered judgment on the theory that its separate and affirmative defense, pleaded by way of counterclaim, set forth matter which the court concluded entitled the defendant to the judgment rendered. No judgment could be rendered for defendant where his defense, as here, is put at issue. 49 C.J. 672. It is a well-settled rule that, if material allegations are denied in the answer, a motion for judgment on the pleadings should not be granted. Manchester M.A. State Bank v. Smith, 90 Cal. App. 506, 265 P. 981. The material issues of fact presented by the complaint made it erroneous to grant the defendant's motion for judgment on the pleadings.
Contention is made that the verbal agreement made in connection with the contracts in respect to the Daniel note transaction brings the case within our statute of frauds. This contention is untenable.
2. The authorities hold that, when a court of equity has once obtained jurisdiction in a suit for specific performance, it will, in accordance with the settled rules of equity jurisprudence, do complete justice by deciding the *Page 17 entire case and determining the whole controversy, as between the persons interested who have been made parties to the action. 23 Cal. Jur. sec. 65, p. 509. Hence, in such cases, courts are frequently called upon to enter alternative decree under the doctrine of conditional specific performance. In such cases decrees in equity are molded in such a way as to give full protection as to the rights of the parties as set forth in the pleadings. Consequently, should it be determined, upon the trial of the issues tendered by this complaint, that the plaintiff had not kept and performed the conditions precedent in respect to payments of the purchase price, a decree under the pleadings in favor of the plaintiff might be conditioned on his performance of the covenants, of which performance on his part is due, or will be due on performance by the defendant. 6 Page on the Law of Contracts, sec. 3368.
Without intimating any opinion on the merits of the issues tendered by the pleadings, we conclude that the order sustaining the defendant's motion for judgment thereon and the judgment should be reversed, with costs, and that plaintiff should have and recover all costs incurred by it at the session of the court in which the order for judgment on the pleadings was entered, and that the remittitur of this court reversing the order and judgment should issue forthwith.
It is so ordered.