112 Neb. 54 | Neb. | 1924
This action is to recover the sum of $2,500, which the petition alleges was made as an initial payment by plaintiff to defendant upon an executory contract, dated May 16, 1918, by which defendant agreed to sell to plaintiff 160 acres of land for the purchase price of $40,800, payable $2,500 in cash, and $38,300 on or before March 1, 1919, at which time possession was to be given. Time was an essential element of the contract, and there was a provision that, if either of the parties failed to perform any of the stipulations of the contract, the failing party should pay $2,500 as damages for nonfulfillment. It is alleged that defendant failed to comp1’.' with the terms of the agreement by furnishing a warranty deed or an abstract of title, -nd has never at any time complied with or offered to comply with any of the conditions of the contract; that at the time of entering into the contract he was unable to comply with any of its terms, nor has he been able to do so at any time since. Plaintiff alleges that he was at all times ready, wil
Most of the facts are undisputed. Plaintiff produced the written contract (exhibit A) set forth in his petition and testified that he paid $2,500 at the time of its execution; that the defendant failed' to furnish a warranty deed or an abstract to the premises, and never offered to perform the contract; that plairitiff was ready and willing to carry out the agreement according to its terms; that he had arranged to borrow part of the money'from a bank at Brainard; that he had sold 80 acres of this land to one Whitzell, under an executory contract, for $245 an acre, and that Whitzell was ready and willing to carry out this contract in accordance with its terms.
The evidence on the part of the defendant is to the effect that, prior to entering into this contract, defendant, a real estate agent or broker, had sold a farm belonging to plaintiff to one Hotovy for $40,000, to be paid in cash on March 1, 1919, plaintiff paying defendant $300 commission on the sale; that after this contract was made plaintiff desired to purchase the land described in the contract (exhibit A), which belonged at the time to one Frank Toman, who had listed the same with defendant for sale; that plaintiff inquired of defendant whether he was authorized to sell the Toman land, and at what price; that defendant informed him that he had the same listed at the price of $40,800; that
It will be seen that the only change in the terms of payment from those in exhibit A was the extension of the time to pay $10,000 of the purchase price, when it is considered that credit was given in this contract for the $2,500 already paid under the other. Afterwards it developed that the mother of plaintiff, who had a life interest in the farm which he had sold to Hotovy, was dissatisfied with the sale and refused to make a conveyance of her interest. Plaintiff was therefore unable to carry out the terms of the sale to Hotovy. He therefore induced Hotovy to surrender the contract, and it was canceled by mutual consent. This deprived him of the means to obtain the $40,000 with which he had expected to make the payment due March 1 on the purchase of the Toman land. Frank Toman died on September 3, 1918, the land was devised to his widow, and an
The evidence further develops that the contract of plaintiff to sell 80 acres of the Toman land to Whitzell had previously been canceled by mutual consent, that by this contract Whitzell was to have a clear title by January 1, 1919, and that since Chermak could not carry out the contract by that time Whitzell desired to have it canceled, and this was done.
While the original contract for the sale of the Toman land was entered into by Smolik, apparently as the owner,
Plaintiff’s theory is that the contract between him and Smolik is void because Smolik had no written authority to enter into it, nor to receive the $2,500 paid upon it; that since Smolik entered into the contract in his own name be was bound to tender an abstract and a deed to plaintiff on March 1, 1919, and that not tendering nor being able to tender the abstract or deed at that time he had no right to retain the $2,500, and plaintiff is entitled to recover it with interest. Plaintiff argues that since all oral conversations were merged in the written contract, and Toman’s name did not appear in it, Smolik must be treated as the real contracting party. Smolik did not have the title to the Toman land at the time he made the contract, nor had he legal authority at that time to execute such a contract, but the subsequent acceptance by Toman with full knowledge of' that part of the purchase price paid by plaintiff to defendant, and the written contract subsequently entered into between Toman and Smolik whereby Toman agreed to convey the land to Smolik in accordance with the terms of the contract of Smolik with plaintiff, constituted a ratification by Toman of the act of Smolik and vested Smolik with entire power to execute a written contract of sale to the plaintiff. On March 1, 1919, Smolik could have demanded performance of the contract from Toman, if he had lived, for the same estate which he had agreed to trans- . fer to plaintiff by the original contract, and the benefit of the contract would have inured in equity to plaintiff.
Was defendant bound to tender an abstract and deed under the circumstances? A party to an executory contract, who states to the other party, before the time for performance, that it is impossible for him to fulfil its terms, and causes the other party to believe he has abandoned it, can
The judgment of the "district court is reversed and the cause remanded for further proceedings.
Reversed.
Note — See Agency, 2 C. J. p. 502, sec. 122 — Vendor and Purchaser, 39 Cyc. p. 1542.