98 N.W. 411 | N.D. | 1904
This is an action to compel the specific performance of a contract to sell and convey real estate. The trial court granted the relief prayed for. Defendant appeals from the judg
The complaint alleges that on June 1, 1891, the defendant and one Sivert Pederson “entered into an agreement in writing whereby Sivert Pederson agreed to buy and the said defendant agreed to sell the land in question for 2,500 bushels of wheat; * * *” that said Sivert Pederson delivered 1,000 bushels of said wheat; that on March 14, 1896, the said Sivert Pederson, “by and with the consent of the defendant,” sold and assigned his interest in said contract to the plaintiff; that since that date tire plainiff has continued in the possession of the premises under said contract, -and made payments thereon; that he has tendered full performance, with interest on defaulted payments, and demanded a deed, which tender and demand was refused. Copies of the contract and assignment are attached to and made a part of the complaint. The defendant in his answer admits the making of the contract as alleged; denies that he had any knowledge of the assignment of the same to the plaintiff, or that he assented thereto; and alleges that the contract in question was canceled and annulled by a written agreement entered into between defendant and Sivert Pederson, with the knowledge and consent of this plaintiff; that after the cancellation of said contract the defendant leased the land to Sivert Pederson, and that the latter has since occupied the same under said lease. The trial court found that the defendant consented to the 'assignment of the contract; that the alleged cancellation was made without plaintiff’s knowledge, and that he has not consented thereto: that the defendant has waived all defaults in the performance of the contract; that the amount due upon the contract, with interest, is the sum of $591.80. The judgment required the defendant to execute a good and sufficient deed of conveyance to the plaintiff upon the payment of said sum by the latter into court for his use.
We are entirely satisfied, from an examination of the evidence, with the correctness of the foregoing findings of fact, and the judgment meets with our entire approval. Aside from the controverted questions of fact, which were properly resolved against the appellant, he contends that the contract imposed no obligation on Sivert Pederson to purchase the land; that it is .unilateral, and cannot, therefore, be specifically enforced. This contention was not presented to' the trial court, and for that reason it may well be doubted whether it can properly be urged in this court. How
Judgment affirmed.