100 Neb. 486 | Neb. | 1916
From a decree of the district court for Cheyenne county, awarding plaintiff a decree for the specific performance of a contract for the sale of land in that county, defendant appeals.
The evidence shows without dispute that the gross sum of the consideration was ascertained in the manner alleged by defendant. Defendant testified in his own behalf that
We think the district court erred. The evidence of defendant shows that he would not have entered into the contract had he known that the tract contained only 295.8 acres. While it may be conceded that a court of equity will compel specific performance of a contract which the parties intended to make, but which, through their mutual mistake, is not the one actually made, it will not compel performance of a contract materially dif
In 2 Warvelle, Vendors (2d ed.) sec. 749., it is held: “It is beyond dispute that a purchaser is entitled to all that he bargains for, and is under no obligation to accept a part or to accept compensation or abatement, hence, if he contracts for the purchase of land of defined area or specified quantity, he is under no obligation to complete the contract if the vendor is unable to convey all that the agreement calls for.”
In Allen v. Kirk, 219 Pa. St. 574, it is said: “It is ungracious to ask that the appellees be compelled to take that Avhich, under a further unchallenged finding of the court, they would not have agreed to take if they had known its real dimensions. * * * The learned judge below cited authorities to support his correct conclusion that the bill ought to be dismissed, but he needed none. The equities were all with the appellees. The appellant, who sought relief, came into court with none. He had innocently and unintentionally, as found by the court, misled the parties with whom he contracted, but out of their mistake, so induced, no contract arose which equity would enforce.”
In 2 Warvelle, Vendors (2d ed.) sec. 749, it is said: “If the vendor cannot make out a title as to part of the subject-matter, or in case of a deficiency in the quantity of the
In Flynn v. Finch, 137 Ia. 378, it is held: “Deceit in representing the area of land need not be shown to justify denial of specific performance of a contract to convey; innocent misrepresentation to a substantial extent, which induced the making of the contract, is sufficient to defeat such relief at the suit of the party making the representations. Evidence held to show misrepresentation.”
In Gurley v. Hiteshue, 5 Gill (Md.) 217, it is said: “A court of equity, professing as it does to lend its aid exclusively to cases in which a claim can be conscientiously enforced, will never coerce the specific performance of a contract for a party who has not acted fairly, openly and without suppression of any important fact, or the expression of any falsehood. Whether with a fraudulent design or innocently, yet if a false impression has been conveyed and made the basis of the contract, this extraordinary jurisdiction of the court will not be exercised by coercing a specific performance.”
Our own cases are in harmony with these authorities. Stanton v. Driffkorn, 83 Neb. 36, and other Nebraska cases therein cited.
While authorities may be found which seem to point the other way, we think the authorities cited clearly state the correct rule applicable to the facts in the case we are now considering. Defendant thought he was purchasing 320 acres of land. He was warranted in thinking so because the plaintiff stated that it contained that number of acres. He agreed to pay $23 an acre for that number of acres, and signed an agreement for the gross consideration, ascertained by multiplying the number of acres which the tract was represented to contain by the price per acre agreed upon. Upon learning that the tract contained many acres short of the number represented, he declined to proceed with the contract. He was justified in so doing, and, having-paid $500 upon the contract in reliance upon the represen
It is claimed by plaintiff that after the parties had ascertained that the land was short they had a conversation in relation thereto, in which he first offered to allow defendant a credit of $200 if he wonld proceed with the contract, and then offered to throw off half of the acreage that was short, at the rate of $23 an acre; that in a subsequent conversation he told defendant that he would throw off the entire shortage in acreage. He did not testify that defendant accepted this offer. The fact that defendant did not at that time consent to take the land if the price of the 24.2 acres were deducted and the failure of the plaintiff to testify that he did so agree are shown by plaintiff’s allegations in his answer to defendant’s cross-petition, in which he alleges that the first time he became aware that defendant was dissatisfied with the deal was about March 4 or 5, when defendant told him that he did not know the land was short in acreage; that “plaintiff told defendant that he was selling the land to him, just as he bought it himself, and that he did not know the half-section was short, and said to defendant that under the conditions he was willing to make a reduction'in the consideration for said land equal to one-half the short acreage, but that he thought the defendant ought also to stand for one-balf the shortage, and that the defendant then told plaintiff that he would see him again with reference to it, and the defendant did come around to see the plaintiff about the shortage of acreage, and the plaintiff then said to the defendant that he would be willing to throw off an amount of the consideration for the purchase of said tract equal to the amount of said short acreage multiplied by the price per acre of said land, just the same as though there were 320 full acres in it, Avhich would be about $560, and that the defendant then said he would be around again, and that plaintiff thought there would be no other complaint, and that the deal would be finished according to contract.” It appears, therefore,
We are unable to discover any theory upon which plaintiff should be permitted to recover.- The judgment of the district court is reversed and the cause remanded, with directions to dismiss plaintiff’s suit for want of equity, and to enter judgment in favor of defendant upon his cross-petition, as prayed therein.
Reversed.