110 Neb. 28 | Neb. | 1923
This is a suit in equity for the specific performance of a contract obligating defendants to lease from plaintiffs three building lots for 99 years. The trial court sustained a demurrer to the petition on the ground that the contract is indefinite and uncertain in its terms. From a dismissal of the suit plaintiffs have appealed.
There is nothing presented by the appeal except the sufficiency of the petition to state a cause of action for specific performance. The contract was executed and delivered. A copy is attached to the petition. Plaintiffs received. $2,500 as part of a stipulated cash payment of $15,000 to be paid within 60 days. The lots were described in the contract. The following terms, among others, were definitely stated in the agreement by defendants to enter into the lease: Period of tenancy 99 years; annual net rental for the first ten years, $6,000; annual net rental for the second ten years, $6,900; annual net rental for the last 79 years, $8,000; option to purchase at stated times for specific amounts.
In addition to other terms, the contract contains an expression in this form: “The lease to contain the usual conditions of a ninety-nine year (99) lease.” This clause as it appears on the face of the contract is the principal ground of demurrer. It is argued by defendants that the contract thus appears to be too indefinite and uncertain for enforcement by specific performance. The position is untenable. The words, “usual conditions,” in the connection employed, refer to a usage or course of dealing on conditions applicable
It is further argued that the contract is not enforceable, because it is therein stated the form of the 99-year lease is to be approved by the owner of the fee. This condition relates alone to the approval of the form in which the terms of the lease, as fixed by the parties in their preliminary contract, are to be couched. If does not authorize the lessor to change in any manner the terms on which the minds of the parties met, when they entered into their contract for the lease. The sus
Other grounds of demurrer are suggested, but no substantial reason has been found for holding that the petition does not state facts sufficient to constitute a cause of action for specific performance. The judgment of the district court is therefore reversed and the cause remanded for further proceedings.
Reversed.