78 Neb. 654 | Neb. | 1907
Lead Opinion
This is an action to compel the specific performance of an alleged contract for the sale of a tract of land. The plaintiff succeeded in the lower court and the defendant appealed. The contract purports to have been executed by the defendant Rice by the defendant Parrott as his agent, and there is no question about its form or sufficiency, provided he had the power or authority to make it. The petition alleges that the land had been purchased and was owned by the defendants as partners, and
The petition alleges that at or shortly after the time of the purchase of the land by the defendants, a brief memorandum of the terms upon which it was acquired and Avas to be held, and according to which it was to be sold within a reasonable time, and the profits accruing from the transaction divided equally betAveen the parties, Avas contained in a letter Avritten by Rice to Parrott, and signed by the former, and containing the following expression : “Yes, Parrott, I ahvays keep my Avord. You are to have one-half of the profits in the above farm and the same in the Copsom farm. Of course, this is after the expenses are deducted, provided the income do not meet the expenses.” The property, called the “Copsom farm,” is the land now in controversy. The ansAver does not deny the authenticity of the letter or the interpretation pur upon it by the plaintiff, except that it avers “that-said memorandum but partially and very imperfectly sets forth said pretended contract, the chief imperfection being that it was understood and agreed betAveen this defendant and his codefendant, Stephen V. Parrott, that said Parrott would procure a purchaser for said land at a
This answer is subscribed by Rice in his own hand and SAvorn to by him, and it is as explicit an admission of the contract between the defendants, and of the power and authority of Parrott to make a sale of the land, as the plaintiff could have desired. It can be said to fall short of a confession of judgment in two particulars only, viz.: First, an admission that the power of sale was in writing subscribed by Rice, and, second, the averment that then; Avas an unexpressed, indefinite limit of the time within Avhich such power was to have been exercised. As to the second of these supposed restrictions, it is difficult for us to understand any difference between a time or duration indefinitely* limited and one of indefinite continuance. Both mean, we suppose, the same thing, namely, Avhat is called in legal phrase “a reasonable time,” and so Ave think that the averment itself is too indefinite to require further consideration. There does not appear to have been unreasonable delay, and Parrott cannot be charged with any lack of diligence, so that Rice is without cause for complaint on that score. As to the first above mentioned of the supposed deficiencies in the Avritten memorandum, Ave think that it is sufficiently supplied by two other letters admittedly written by Rice to Parrott, one dated at Wamego, Kansas, on the 11th day of November, 1899, in which the writer says, having reference to the land in suit: “I hope, Parrott, we can sell it soon or by spring and you and I realize a nice thing on our venture,” and another written in January, 1900, in which he says: “We must make all we can out of the1 place until a good price is given for it.” The letters
The contract Avith the plaintiff was made on the 24th of February, 1901, after all these letters had been written, but before that time, to Avit, in December, 1900, Rice had (altered into a lease of the premises with one De Cam]) for a term of five years beginning on the first of the folloAving March, and he contends that such lease Avas a revocation of any previous powers he had conferred upon Parrott, of Avhich both the latter and the plaintiff had knowledge at the time the contract in suit was executed. But Avhether the admitted partnership was limited to the 1 unfits of the venture or extended to the land itself, Parrott had a power coupled Avith an interest, and such a poAver is not arbitrarily revocable without the consent of the donee. Bergen v. Bennett, 1 Caines’ Cas. (N. Y.) 1; Denson v. Thurmond, 11 Ark. 586; Raymond v. Squire, 11 Johns. (N. Y.) 47; Knapp v. Alvord, 10 Paige (N. Y.), 205; Smyth v. Craig, 3 Watts & Serg. (Pa.) 14; Marziou v. Pioche, 8 Cal. 536. There is no important dispute of facts, and we think it quite unnecessary to decide, upon the issues and record in this case, whether Parrott has an undiAdded interest or title in the land itself as a partner, or Avhether Rice holds an undivided interest or
Rice became aware of the contract in suit on or about March 1, 1901, “and at once notified the plaintiff that he regarded it as having been made without right or authority, and as being therefore void. Immediately thereupon he proceeded to erect, and did erect, upon the premises a bouse-and barn at an expense and of a value, as found by the trial court, of $1,200. These improvements were not made in reliance upon any inducement or representation by the plaintiff, or because of any conduct of the latter indicating acquiescence in a repudiation or rescission of (he contract, or an intention on his part to abandon it,but, on the contrary, were made in conscious and open hostility to and defiance of the plaintiff’s right. Since that time Rice by himself or his tenant has remained in undisturbed possession of the farm and in receipt of its rents, issues and profits, amounting to several hundreds of dollars a year. The contract price of the land is $7,300, which counsel agree was about its fair value at .the time the agreement of sale was made. This action was begun on the 5th day of- January, 1905, three, years and ten months afterwards, after the land had risen in value, as counsel also practically agree, to about $16,000. It is insisted now by the defendant that the equity of the plaintiff, if he ever had any, has been lost by laches and delay. The trial court so far admitted the plea as to allow the defendant a lien upon the premises for the amount of the value of the improvements. This decree does not appear to us to be inequitable to the defendant. The authorities are unanimous that there is no definite or certain rule by
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.
Rehearing
The following opinion on motion for rehearing was filed December 5, 1907. Former judgment of affirmance adhered to:
This case is before us on rehearing, a judgment of affirmance having been entered at a former term. Ante, p. 654. Generally, a motion for rehearing should be limited to the propositions relied on at the original presentation of the case, and we do not feel required to pass upon the point now argued as to the sufficiency of the petition, which is called to our attention for the first time in the brief on rehearing. However, disregarding surplusage, and applying the rule that a petition will he liberally construed when attacked for the first time in tbia court, we think the pleading assailed states a cause of action. In substance, it alleges a contract between defendants under Avhich they engaged in buying and sell
It is evident that a clear, definite and complete contract is alleged, and that the defendant Rice refused to comply with its terms. If Parrott were not a necessary party, the fact that he was named as a party, and the fact that nothing remained for him to do in the full execution of the contract, does not render the petition insufficient as to Rice. The evidence is sufficient to sustain the decree. It is unnecessary to say anything further heré, as the former opinion sufficiently reviews the evidence.
The remaing point for our consideration is whether plaintiff’s laches barred the equitable relief sought in this action. The writer was in doubt concerning the correctness of the conclusion first announced on this branch of the case, and was inclined to think that plaintiff, having slumbered on his-rights for three years and ten months, was apparently aroused into activity by the discovery
It is further argued that defendant was prejudiced to the extent of the increase in the value of the land, and that it was inequitable to permit plaintiff to Avithhold his claim for specific performance awaiting the rise or fall in the value of real estate, and then assert or renounce his interest in accordance with the result. It has been held that “the unexplained delay of the vendee to sue for the specific performance of a contract for the sale of a town lot for 3-|- years after the vendor refused to comply with the contract, and took possession of the lot, renders him guilty of laches which bars his right to such relief.” Wolf v. Great Falls Water Power & Townsite Co., 38 Pac. 115, 15 Mont. 49. See Gentry v. Rogers, 40 Ala. 442; Combs v. Scott, 76 Wis. 662, 45 N. W. 532, and the authorities collected by Judge Irvinio (formerly a commissioner of this court) in his excellent article on “Equity.” 16 Cyc. 150-181. In all the cases we have examined, hoAvever, the delay barring equitable relief is qualified, as in Wolf v. Great Falls Water Power & Townsite Co., supra, by such expressions as “unexplained,” “without excuse,” “unaccounted for,” and this leads us to inquire if the delay relied on in the case at bar was without excuse or was unexplained, otherAvise, under the rule announced in the decisions above cited, the claim of plaintiff might be barred by laches. Lapse of time short of the statutory period will not bar relief where circumstances exist excusing the delay and rendering it inequitable to interpose the bar. The excuse offered by plaintiff in the instant case is found in the record and is as follows: “Q. Mr. Harrison, why didn’t you commence an action to enforce this contract for the sale of this land before? A. I was Avaiting to see what the outcome was in the other suit. I thought it was no use commencing the suit until it was determined whether Mr. Parrot had authority to deed me
Our former opinion should be adhered to, and we so recommend.
By the Court: For the reasons stated in the foregoing opinion, our former opinion is adhered to.
Affirmed.