25 Neb. 368 | Neb. | 1889
This is an action for the specific performance of a contract for the sale of real estate, and was instituted in the
The answer of defendant is to the effect that, prior to the' date of the purchase, plaintiff had represented to him that she held the two government claims referred to, which consisted of one hundred and sixty acres; that they were nice, smooth; and. good land, and suitable for agricultural purposes, as fine land as in the state; and upon such representation he sighed the contract. But, that by agreement, it was deposited in the hands of a custodian until he could go to Dundy county and examine the claims, for the .purpose of ascertaining whether they complied with the representations made by plaintiff as to their quality; that .in case he should be satisfied with the land, finding it as represented, the contract in the hands of the custodian was to be delivered, but not otherwise; that upon an examination of the land he found it worthless, or nearly so; that its quality and value had been grossly misrepresented by plaintiff; that he immediately notified her of that fact and declined to consummate the trade. It is further alleged that the possession of plaintiff of the real estate involved in
The cause was tried to the district court, where a decree was rendered dismissing the plaintiff’s petition. She appeals to this court.
We have examined the bill of exceptions, and are fully .satisfied that the decision of the district court is sustained by the evidence.
It is shown, both by the testimony of defendant and of Mr. Pickering, the custodian of the contract, that it was not delivered, but left in Pickering’s hands to be delivered, in case the claims referred to were found as represented, .and satisfactory to the defendant.
There was evidence submitted which justified the finding of the district court, that the government claims which were to be relinquished to defendant were not as represented, and were substantially worthless; that defendant, after visiting Dundy county and examining the land, notified plaintiff of his determination of declining to carry out the conditions of the contract, or allow it to be delivered to plaintiff. There was, also, testimony sufficient to sustain the finding that plaintiff’s possession of the real estate was by virtue •of a contract of lease for one month, and not under any •of the provisions of the agreement in the hands of Mr. Pickering, nor in consequence thereof. It is true the testimony of plaintiff contradicts that of witnesses on the part of defendant on all of these propositions; but it has doubtless by this time become the settled law of this state that, where the evidence is conflicting, and there is sufficient to sustain the finding of the trial court, it will not be molested.
It is insisted that the testimony admitted, tending to sustain the theory of defendant, that the contract was not
The decree of the district court is affirmed.
Decree affirmed.