188 N.W. 1022 | N.D. | 1922
Lead Opinion
This is a suit for the specific performance of a contract and for $250,000 damages. Paul, the plaintiff, appeals from a judgment canceling the contract on the ground that it is uncertain, unconscionable, and void for want of mutuality and nonperformance by the plaintiff. There is little ground for disputing either the law or the essential facts. To state the case is to decide it.
(2) Paul, the plaintiff, agrees to obtain a contract for deeds to such land and to pay thereon $200,000 leaving a balance due and unpaid, $160,-000; also, to deliver such contracts, with abstracts of title.
(3) The contracts offered by Paul are Exhibits 8, 9, 10, and xi. Each is dated either October 25, 28, or 30, 1920, signed by the grantors and by Dakota Homes Company, by P. Z. MoWry, President, George N. Paul, Secretary. Each contract reserves merchantable timber, pine, hardwood, cypress, and juniper, and turpentine privileges for a term of years. Each contract recites a payment of nearly 3 per cent, on the price —in all, $10,000. The 3 per cent, may have been a commission. There is no evidence of any cash payment. The grantees assume and agree to pay 97 per cent, of the purchase price.
(4) For his interest as a purchaser of the land — a half interest, as measured by his stock in the nonexisting corporation — Leutz does transfer to Paul 954 sections of land in Mercer county at $25 an acre, subject to a mortgage for $20,000, 375 head of cattle, 50 head of horses, with ranch equipment, hay, feed, and grain, at regular market prices; and, if necessary to care for his share of the balance of the indebtedness, Leutz agrees to put up as collateral $12,500 first mortgage bonds of the Plebron brick plant, $35,000 in shares on the plant, with his homestead in Hebron, valued at $40,000.
(5) From the abstracts it is wholly impossible for a judge, sitting in his chambers, to determine that the titles are good or bad. That would require investigation and inquiry of perhaps six months, and evidence dehors the abstracts.
(6) There is no convincing evidence that the Florida land is worth half the sum due and unpaid on its price, as shown by the contracts, Exhibits 8, 9, xo, and 11. There is strong evidence that the land is not worth over $2 an acre.
The Civil Code gives the law of the case thus:
Section 7193: Neither party to an obligation can be compelled to perform it unless the other party has performed or may be compelled, to perform it.
To summarize: The contract in question does not describe the land with certainty. It expressly bargains for the payment of $200,000, and not'merely 3 per cent, of the purchase price. The contract is not for titles, with reservations for a term of years, as shown by Exhibits, 8, 9, 10 and 11. The contract is for land fairly worth $18 an acre, and not merely a small part of that sum. Every point of law and fact is against the plaintiff. The case merits no discussion.
The judgment is clearly right, and it is affirmed.
Concurrence Opinion
(concurring specially). The findings of fact of the trial court are amply sustained by the evidence. Its conclusions of law are correct; its judgment entered is a proper one, and should be affirmed.
I concur in its affirmance.
Concurrence Opinion
(specially concurring). I agree with my associates that the plaintiffs in this case have not established a contract of such nature as will be specifically enforced in equity. See Avery v. Ryan, 74 Wis. 591, 43 N. W. 317; 25 R. C. L. p. 303 et seq. § 7197, C. L. 1913.
