16 Neb. 625 | Neb. | 1884
In July 1877, A. N.'Wisweil entered into an oral agreement with James and E. C. Marsh, whereby he was to receive from said Marshes a large number of harvesting machines, known as Marsh No.4 and Valley Chief. Twenty-seven of these machines were then at Beatrice in the care
In September, 1877, Wiswell and the Marshes endeavored to reduce the agreement to writing and complete the-contract, but were unable to agree, and no written agreement was made. The Marshes thereupon refused to deliver the nineteen machines in the hands of their agent and demanded those already delivered, and thereafter about the 5th of November, 1877, sold the nineteen in Harrison’s possession to the plaintiff. Wiswell, on ,or about the
It is very clear that this exchange of property was not completed. There was an oral agreement to exchange, and in pursuance of that agreement Wiswell received and sold certain reapers belonging to the Marshes, and in a general way turned over certain personal property to them; that is, they were to take the property as a part of that to be received for the reapers, but there was no change of pos-' session, the tenants of Wiswell, in whose possession it was found, continuing to retain the same. It was well understood by the parties at this time that to complete the contract on the part of the Marshes they must deliver the reapers then in Harrison’s hands to Wiswell, pay the amount of money agreed to be paid as the estimated difference in value of the property received over the reapers,
In no case will a court decree specific performance unless the contract is clearly established. Williams v. Lowe, 4 Neb., 382. This the proof fails to do. A party who claims to have fully performed an oral agreement to exchange lands for other property must show—first, a definite contract to that effect and its terms; second, such a part performance on his part that its rescission would be a fraud upon him; and third, the delivery of possession in pursuance of the contract.
The contract was rather an agreement to exchange prop-. erty upon certain terms and conditions than an actual exchange. In such cases where anything remains to be done by the terms of the contract before the transaction is complete the title to the property does not pass except as to that actually delivered for that purpose. Ward v. Shaw, 7 Wend., 404. Gibbs v. Benjamin, 45 Vt., 124. Welsh v. Bell, 32 Penn. St., 12. Martin v. Hurlbut, 9 Minn., 132. Straus v. Ross, 25 Ind., 300. It was a mere oral agreement as to the exchange of property, which it was well iinderstood would not be complete until reduced to writing, a conveyance of the land made, and the Marshes
Mr. Wiswell testifies (page 103 of the record):
. Q. I want to know what the writings were to consist of, what writings you were to make, and what writings Marsh was to make?
A. I was to make an assignment to three sections of school land and make him a deed for the other‘land, and he was to give me a contract for the machines and was to pay me something in cash and give notes for the balance and security.
Q,. And turn over the machines?
A. And turn over the machines.
This testimony was given on behalf of the defendants to sustain the issue on their part, and it has the opposite effect. Besides, the assignments of the leases, introduced in evidence by the defendants as having been tendered to the Marshes, are dated December 10th, 1877. It is true that under the intimations of his attorney, Mr. Wiswell testifies that these are not the assignments he tendered in September, 1877, but if they are not it is somewhat remarkable that they should have been introduced in evidence and the others not. The reasonable presumption is that these are the identical assignments.
In our view the question of tender does not enter into the case, because there has been an entire failure on the part of Wiswell either to plead or prove a clear and definite contract. Second. Because he fails to show such a part performance as would have entitled him to a decree, and he was not placed in possession of the property. At the most it was a partial payment upon an oral agreement and is not sufficient. Purcell v. Miner, 4 Wall, 518. Chamley v. Hamsberry, 1 Penn. St., 16. Phillips v. Thompson, 1 Johns. Ch., 131. Price v. Salusbury, 32 Beav., 446. Wiswell, therefore, could not enforce the alleged
Upon the whole case it is very clear that the nineteen machines in question were never delivered to Wiswell, and that upon the failure of negotiations in September, 1877, •his right to any portion of them ceased, and that the defendants wrongfully converted the same to their own use. They are therefore liable for their value. The judgment of the district court is reversed and the cause is remanded.
Reversed and remanded.