73 Neb. 783 | Neb. | 1905
This is an appeal from a decree of the district court for Dawes county enforcing specific performance of a contract for the sale of real estate. Certain property, consisting of a house and two lots in the city of Chadron, ivas owned by one Cordelia M. Strickland, who had formerly resided at that place, but at the time of the transaction was a resident of Joplin, Missouri. Reynolds & Slattery Avere real estate agents, doing business at Chadron. They had for several
This case is another example of that too numerous class in which a man attempts to serve two masters, and in which his duty to one is apt to interfere with the proper discharge of the obligation resting upon him to protect the interest of the other. We think it clear that the contract of sale with Mrs. Mason was never completed by payment according to its terms. The first letter told Mrs. Strickland that a cash offer of $1,500 had been made to her agent. This was rejected, and an offer made by her to accept $1,600 cash and to alloAv the agents all over $1,500 as their commission. Her letter of March 9 evidently answered the letter of March 6, in which they stated that the deal was closed. There can be no question that these letters indicate an offer for a cash transaction on the part of Mrs. Strickland. The evidence further sIioavs that Mrs. Mason had made a cash offer for the property to the agents,
A party to a contract of sale for cash upon delivery is excused from performance if the other party at the time of performance refuses to perform, but requests an extension of time. Beauchamp v. Archer, 58 Cal. 431. When the deed arrived on March 13, the money was due to be paid. Instead of paying it, an extension of time Avas asked for over fifteen days, which Avas never granted. The money was not paid even then, nor at any time, until it Avas brought into court when this action was begun. The delivery to Reynolds & Slattery was not a delivery to Mrs. Mason, since the agency for Mrs. Mason that Slattery now asserts to have existed was not disclosed to Mrs. Strickland. Slattery could do nothing with the deed to confer any rights upon Mrs. Mason unless' his acts were either authorized or ratified by his principal, Mrs. Strickland. In a legal sense the deed has never been delivered, its recording was a breach of confidence, and no rights can be acquired by such a proceeding. Patrick v. McCormick, 10 Neb. 1; Soward v. Moss, 59 Neb. 71.
The petition alleges a contract to pay $1,600 in cash for the property upon delivery of a deed; that at the time of delivery to plaintiff’s agents she was ready and willing to pay the consideration money, and would have done so but for the fact of the recording of the deed to Maika. But the deed was ready for delivery on March 12, and the plaintiff notified by letter to that effect; and on the 13th, so far from being ready and willing to pay, she by her agent, Obercotter, asked for an extension of time to April 1. The evidence therefore fails to sustain the allegations of the
Whether or not there at any time existed a valid and enforceable contract between Mrs. Mason and Mrs. Strickland we do not find it necessary to decide. We have followed in the discussion the case as presented in the briefs and argument of counsel.
We recommend that’the judgment be reversed and cause remanded, with directions to enter a decree in favor of the cross-petitioner, White, as prayed in his cross-petition.
By the Court: For the reasons stated in the foregoing-opinion, the judgment of the district court is reversed and the cause remanded, Avith directions to enter a decree in favor of the cross-petitioner, 'White, as prayed in his cross-petition.
Judgment accordingly.