60 Neb. 452 | Neb. | 1900
This suit was for the specific enforcement of an alleged contract, of which the following is a copy:
“South Omaha, Neb., December 7, 1887.
“Received from G-. M. Soutlimayd fifty ($50) dollars as part payment on the east fifty feet of lots 13 and 14 in block 79, in South Omaha. The consideration for the said lots is to be five thousand ($5,000) dollars, one-half of which price is to be paid on delivery of deed for the same, which deed is to be made and delivered on the first day of January, A. D. 1888. Should the said G. M. Southmayd fail to pay the amount above specified at the time mentioned, then this contract is at an end. And is null and void without notice. John T. Gathers,
“In presence of Attorney for Edward Glar%
“O. E. Lane.”
A general demurrer to the petition was interposed by
The cases of McWilliams v. Lawless, 15 Nebr., 131, and Wheeler v. Walden, 17 Nebr., 122, are distinguishable from the one at bar. In the first case the application to purchase the land was made to the Burlington & Missouri River Railroad Company in Nebraska, which application was accepted by the company, and its land commissioner gave to the applicant a receipt for the money paid on the purchase, signed “J. D. McFarland, Land Commissioner.” Blank contracts were sent by the railroad company to the purchaser, who signed and returned the same, and also sent to the company another payment on the land, and a receipt therefor, signed “J. D. McFarland, Land Commissioner,” was sent to the purchaser. The entire transaction showed that the contract to sell was that of
The instrument in the case at bar, not being the contract of Edward Clark, it can not be specifically enforced against his grantees. The demurrer was properly sustained, and the judgment is accordingly
Affirmed.