74 Neb. 325 | Neb. | 1905
On the 30th day of June, 1902, plaintiff in error, hereinafter called the defendant, as party of the first part, entered into a written contract with the defendants in error, hereinafter called the plaintiffs, as parties of the second paid, for the sale of a tract of land in Adams county for the sum of $G,300, of which $100 was paid at the time of the execution of the contract, and by the terms of the agreement the remainder ivas to be paid, $900 on or before July 10, 1902, and $5,300 on March 1, 1903. The contract also provided that the plaintiffs were to have a share of the crops then growing on the land. The contract contained the following condition: “And in case of the failure of the parties of the second part to make either of the payments, or to perform any of the covenants on their part hereby made and entered into, this contract shall, at the option of the party of the first part, be forfeited and determined, and parties of the second part shall forfeit all payments made by them on this contract, and such payments shall be retained by said party of the first part in full satisfaction and liquidation of all damages by him sustained, and he shall have the right to reenter and take possession of the premises -aforesaid.” The plaintiffs failed to meet the payment due on the 10th day of July, 1902, but on the 14 th of that month tendered the defendant the amount of the payment due on the 10th, which the defendant refused to accept, and declared that the contract had
We think both contentions of the defendant well founded. The rule is well settled in this state that, where a contract of sale has been consummated by writing, the presumption is that the writing contains the whole contract, and, in the absence of fraud, mistake or ambiguity of expression in the contract itself, parol evidence is inadmissible to change or vary its terms. Nebraska Land & Feeding Co. v. Trauerman, 70 Neb. 795, and authorities there cited. Even if the defendant agreed orally, after the contract was executed, that the plaintiffs might have a few days after July 10 to meet the payment maturing on that date, it was a naked promise, without consideration, and could not be enforced. It follows therefore that the court erred in the admission of oral evidence to vary the terms of the written contract. It is clearly apparent from the written contract that time was of the essence of. it, and that the failure of the plaintiffs to meet the payment maturing on the 10th day of July, 1902, gave defendant the option to forfeit the contract and declare it at an end. This he has done, and the law will not aid the plaintiffs, under the circumstances in this case, to recover where the breach of the contract was their own.
We recommend that the judgment of the district court be reversed.
Reversed.