25 Neb. 857 | Neb. | 1889
On the 10th day of August, 1886, Charles W. Canfield, by his attorneys, Savage, Morris & Davis, filed in the district court his petition for the specific performance of a contract for the sale of real estate, alleged to have been made
“Omaha, Neb., Aug, 9th, 1886.
“Rec’d of O. W. Canfield twenty-five ($25) dollars as-part payment of part of lot 9, block 17, E. V. Smith’s Add. to Omaha. Price of lot to be $2,000 • terms $1,000-cash, title to be satisfactory to purchaser.
“ E. A. Tillotson,
“per Gannon, Agt.”
It was alleged that Cannon was the agent of defendant,, duly authorized in writing, at the time of said sale.
This petition need not be further noticed.
On the 19th day of August, 1886, what is denominated' a stipulation was filed in the cause, which is as follows :
“In the district court, state of Nebraska, County of Douglas.
“ Charles W. Canfield,
vs.
Erastus A. Tillotson.
“It is hereby agreed that William F. Gurley, Esq., be-allowed to be made party defendant in this case and file answer, this date, August 19th, 1886.
“ Savage, Morris & Davis,
“Ptff’s Attorneys.”
On the 31st day of August, of the same year, defendant
On the 4th day of June, 1887, the following entry was made in the journal:
Charles W. Canfield against E. A. Tillotson, et al.
“ MOTION.
“ Now comes William F. Gurley, by his attorney, and represents to the court that he has an interest in the property in the petition herein described, and on his motion, and •all parties consenting thereto, he is hereby made a party •defendant in this case, with leave to plead within ten days.”
On the 23d day of the same month, William F. Gurley •filed an answer and cross-petition, in which he denied that any valid contract was made by plaintiff for the purchase of the property, and alleged that on the 31st day of July, 1886, he entered into a contract with defendant Tillotson, the owner of the real estate, for its purchase, which contract was in writing as follows:
“ Received of W. F. Gurley, fifty ($50) for part payment for the south fifty ft. of lot nine (9) in block seventeen (17), E. Y. Smith’s addition to the city of Omaha; terms $1,000 cash on delivery of deed, purchaser to assume mortgage of $750 due in one year from date, mortgage interest running at eight per cent per annum. The purchase price being $1,800, the purchase price subject to the taxes of 1886. If final payment is not made within twenty •days from date, all rights to be forfeited.
(Signed) “ E. A. Tillotson.”
It is alleged that upon the signing and delivery to him, Gurley, of said contract^ he paid the sum of $50 earnest money, and that before the expiration of the twenty days in which he had to complete payment of the money, an agent of Tillotson, although not appointed in writing, made the pretended sale of the land to the plaintiff, and the plaintiff relying on said sale, and the false representations of said
To this cross-bill Tillotson answered, admitting the execution of the receipt, and denying the tender, and willingness on the part of .Gurley to perform the contract; also, denying that the suit by Canfield cast any cloud upon his title, or disqualified him from conveying the real estate to, Gurley in compliance with the contract of sale. It was alleged that on the 19th day of August, that being the last day in which the contract could be performed, he executed a conveyance of the property, with the usual covenants of' warranty, and tendered the same to Gurley, but which was. refused, and that thereupon the contract was declared forfeited, in accordance with its provisions, which by its terms, made time of its essence; that after the tender of the deed and the refusal to accept it by Gurley, the property ■ had greatly increased in value, and that it would be unjust and unequitable to compel the specific performance of the contract.
A trial was had to the district court, which resulted in a finding and decree dismissing Canfield’s petition, and requiring defendant to convey the property to Gurley. From this decree defendant appeals.
. There was no testimony introduced on the part of Can-field for the purpose of maintaining his. ease, the contest being between Gurley and defendant.
On the 9th of the following month, the receipt was given by Cannon to Canfield, and on the next day Canfield commenced his action. Gurley’s option expired on the 19th day of the same month, and on that day Canfield’s attorneys filed what is denominated a stipulation, agreeing that Gurley be allowed to be made a party defendant and file his answer of that day. This stipulation was signed alone by Canfield’s attorneys. On that day the deed was tendered to Gurley by Tillotson, and the money demanded according to the terms of their contract. On the 4th day of June, 1887, Gurley applied to be made a party defendant, and was permitted to do so, with leave to plead in ten days. On the 23d day of the same month, and nineteen days thereafter, he filed his cross-bill. It appears from the evidence that, at or about the time of the tender of the deed, Gurley was informed that Cannon had no written authority to bind Tillotson, and that the contract made by him to Canfield' could not be enforced. It appears also, that at the time of the execution of the receipt by Tillotson to Gurley, there was some probability that the line of cable or street railroad, which was then in process of construction, would be located along the street in front of the property in dispute, but that at the expiration of the twenty days the line had not been definitely located. It was, however, constructed on that street, and the property rapidly increased in value, until at the time of the trial it was shown to be worth in the neighborhood of $5,000. Possession of the property was never taken by the vendee, and he made no improvements thereon.
As stated in Kimball v. Tooke, 70 Ill., 553, at page 561, .“It is difficult to avoid the impression that these facts make, that the objection taken to the title, so unsubstantial in their character, were a mere invention to postpone the consummation of the contract until after” the question of the location of the street railroad had been settled. If it should not be located within the vicinity of the lot in dispute there would be little or no speculation in the purchase. 'Its location upon an adjoining street would materially affect the value of the property. If favorable to the investment, plaintiff could insist upon a fulfillment of the contract; if unfavorable, he could make the objection of a defect in or cloud upon defendant’s title as a basis for declining to proceed further. He was clearly in default when he refused to accept the deed and pay the purchase price agreed upon. At that time he, in effect, forfeited his contract, and Tillotson was released therefrom.
There is no question of conflicting evidence presented. The evidence throughout sustains the conclusion which we
The decree of the district court is therefore reversed, and the cause dismissed.
Judgment accordingly.