55 Neb. 324 | Neb. | 1898
On June 13, 1893, Alvab Waterman entered into a written agreement witb George King for the sale to the latter of 240 acres of land situate in Douglas county. The following is a copy of said contract:
<fArticles of agreement, made and entered into this 13th day of June, 1893, by and between Alvah Waterman, of Elkhorn precinct, of Douglas county, Nebraska, of the first part, and George King, of Wisner, Nebraska, of the second part, witness:
“Alvah Waterman, of the first part, does hereby contract and agree with George King, of the second part, to sell to him the land described as follows:
“The southeast quarter (SE. J) of section No. twelve (12), in township No. sixteen (16), range No. ten (10) east. Also the west one-half (-]-) of the northwest quarter (NW. |) of section No. thirteen (13), township No. sixteen (16), range No. ten (10) east, being in all two hundred and forty (240) acres of land, at the price of fifty-five ($55) dollars per acre, making the total price thirteen thousand two hundred (13,200) dollars, to be paid as .follows:
“One thousand (1,000) dollars on this 13th day of June, 1893, the receipt whereof is hereby acknowledged, and eight thousand ($8,000) dollars on or before Feb’y 1st, 1894, and the remaining forty-two hundred dollars ($4200) to be secured by mortgage on said land.
“Alvah Waterman does hereby agree and bind himself and his heirs and assigns to make and execute unto George King a warranty deed, as soon as the said pay*326 ment of Feb’y 1st, 1894, of eight thousand ($8,000) dollars is made, to said land, taking a mortgage for balance unpaid, the ownership and title to remain in Alyali Waterman until the above described payments are made and mortgage given.
“George King, party of the second part, does hereby agree to the above writings: he agrees to pay Alvah Waterman, his heirs or assigns, the price of fifty-five ($55) dollars per acre for the land heretofore described of two hundred and forty acres, making a total price of thirteen thousand two hundred ($13,200) dollars, and agrees to pay one thousand ($1,000) cash, eight thousand ($8,000) dollars on or before the first day of February, 1894, and further agrees to give to Alvah Waterman a mortgage upon all said land for the remaining unpaid principal, when deed shall be delivered to him. The remaining unpaid principal to be paid as follows: Two thousand ($2,000) dollars payable in three years from date given, and bearing interest at the rate of seven (7) per cent, payable annually, and secured by mortgage on said land; twenty-two hundred (2200) dollars payable in five years from date given, and bearing interest at the rate of seven (7) per cent, payable annually, and secured by mortgage on said land hereto before described.
“To all of the above writing we, and each one of us, hereby and hereto agree, and set our hands, this 13th day of June, 1893.
“Witness: Alyah Waterman.
“J. M. Bruner. George King.”
On December 12, 1893, King instituted this action to recover from Waterman damages for the alleged breach by the latter of the conditions of said contract. The making of this agreement is admitted by the answer, but the defendant in his pleading denied that the stipulations of said contract had been broken by him. The jury, under an imperative instruction by the trial judge, returned a verdict for the defendant, and the unsuccessful party has prosecuted error from the judgment entered thereon.
The contract provided that the first payment to be made thereon by King should be $1,000 in - cash. It is undisputed that of this amount only $300 was paid in money at the time the agreement was signed, and that Waterman accepted, in lieu of the balance of said $1,000, the demand note of plaintiff for $700, which defendant left with Mr. Brnner, a banker at Elkhorn, for collection. While a portion of the lands agreed to be conveyed was occupied by Waterman and his wife as their homestead, yet the agreement was signed by the husband alone. Mrs. Waterman informed King on July 15, two days after the date of the contract, that she would not execute a deed to the premises, and subsequently on the same day the defendant stated to plaintiff that the neighbors had been talking to his wife and induced her to refuse to sign the deed, and by reason of the premises he, Waterman, expressed his inability to carry out the contract. King informed the latter that if he broke the contract he would insist upon the payment of the damages sustained by reason of such failure
We are fully persuaded that the facts in the case at bar bring it within the principle announced in Carstens v. McDonald, 38 Neb. 858, where it was stated: “A mere declaration by a party to a contract'that he does not intend |to carry out the terms thereof before performance is due /will not constitute a breach, so as to authorize the other to at once maintain an action.; for the party, at any time before the period fixed for performance, has the right to recant and comply with his agreement; but if he fails to withdraw his declaration before the time comes for performance, it will excuse the default of the other party.” (See Terry v. Beatrice Starch Co., 43 Neb. 866.) The doctrine stated is sustained by the decisions from other courts, and the correctness of the rule, as an ab
It is urged that the failure to receive the payment of the $700 note constituted a breach of the contract. We do not so consider it: This note was no part of the agreement for the sale of the land, but was. accepted merely in lieu of that amount of cash, and having been, so received the stipulation for the first payment of $1,000 was fully satisfied. Suppose plaintiff had failed to pay the note, but had complied with every provision in his contract to be performed by him, would the failure to pay the note have prevented him from enforcing specifically the contract against the defendant? To state the proposition is to evoke a negative answer. This shows that the declination at one time to accept the money on the note did not constitute a breach of the contract of sale. The judgment is
Affirmed.