| N.D. | Jun 1, 1918
Concurrence Opinion
(concurring). Defendants appeal from a judgment for tbe specific performance of an alleged contract to convey to tbe plaintiffs a quarter section of land in Eenville county. Tbe complaint .avers that tbe plaintiffs have an estate and interest in tbe land and that defendants claim some estate adverse to tbe plaintiffs. Then in a bungling way it avers that Hans Larson, owns tbe land. Its value is $5,000. Tbe yearly value of its use and occupation is $550. Tbe value of balf tbe crop grown on tbe land during tbe year 1914, is $550. That on April 1, 1914, Larson made a written contract to sell tbe land to tbe plaintiffs for $4,000, wbicb they agreed to pay, and that since then defendant August Emmel, bas been in possession of tbe land as tenant of Larson.
Tbe relief demanded is that defendants set forth their adverse claim and that it be adjudged void and that plaintiffs recover possession of tbe land with $550, for tbe use and occupation of tbe same. Tbe complaint states neither a cause of action for specific performance nor tbe determination of an adverse claim. However, it shows that Larson owns tbe land and tbe plaintiffs have no title to it. Tbe evidence shows tbe plaintiffs have been trying to bargain for tbe land at $4,000, but there is no showing of any completed contract. Tbe bargain was all by letters wbicb contain offers, counteroffers and modifications, but there is no showing of a complete acceptance of any offer and a full compliance with other conditions. There is a written contract signed by tbe plaintiffs but it is not signed by defendant Larson. To copy the correspondence would malee needless expense and avail nothing. But even if there were proof of a legal contract (wbicb there is not) it does not follow, as a matter of course, that tbe court should decree a specific performance of tbe same without some facts and circumstances appealing to tbe conscience of tbe court. Tbe contract must be just and fair and tbe remedy must not be harsh in its operation upon defendants. Hnder tbe statute specific performance may not be enforced against a party to a contract if be bas not received an adequate consideration for tbe contract, and if it is not as to him just and reasonable. Comp. Laws, § 1198.
In this case it appears tbe quarter section of land is worth $5,000. and for the crops of three years, tbe court allows $1,000. In December, 1914, when the crop of that year was assured, tbe plaintiffs sued
Thus without having paid a dollar the plaintiffs want a quarter section of land at $1,000 less than its value. A quarter section worth $5,000 and crops for three years, $1,000 and annual interest on the value of the crop in each year. And they refuse to pay interest for three years on the $1,000 cheek though Larson had never offered to receive such a cheek. Manifestly there is not justice or equity in such a deal and it is contrary to the first principles of equity.
Judgment reversed and action dismissed.
Rehearing
On Rehearing.
A rehearing was ordered in this case. Mr. Justice Grace, being disqualified, and District Judge Disk, who sat in his place upon the first- argument being ill, Judge Nuessle of the sixth district was called in and sat as a member of the court upon the re-argument. After careful consideration, we are of the opinion that the conclusion reached in the former opinion is correct. We are, also, of the opinion that there is a reason not mentioned in the former opinion for holding that the plaintiffs have failed to establish that they have a contract for the purchase of the premises involved in this suit. The former opinion refers to a letter of April 29th, 1914, as an acceptance of an offer. This letter is, in our opinion, not an acceptance, but rather a counter offer. It makes the acceptance conditional upon the defendant Larson, furnishing or paying for an abstract of title. This might have meant a considerable expense so far as defendant was concerned, and it was a new condition, — one not referred to in any of the former correspondence.
We, also, believe in view of the fact that the defendant in his- answer has affirmatively set up a fee title in himself, and has prayed that title be quieted in him, that judgment should be entered in favor of the
Lead Opinion
being disqualified, FeaNk E. Fisk, District Judge, sat in his place.