11 Neb. 186 | Neb. | 1881
The action below was based upon an alleged breach, by the defendant, of a contract known as a “ pre-emption certificate,” issued by the company to the plaintiff on the 15th day of April, 1872. By the terms of this certificate the defendant bound itself to sell the land in controversy to the plaintiff, upon certain terms and conditions, to be embodied in a more formal contract, after the company had obtained its patent from the United States. This formal contract, it was stipulated, should be applied for by the purchaser within sixty days after receiving notice, which the company was to give, that the patent had been obtained. Among the several provisions of this pre-emption certificate, was this: “ In case the pre-emption applicant shall fail to pay for, or enter into contract to pay for the land which he may have pre-empted before the expiration of said sixty days, he will thereby lose all benefit of his pre-emption right, and the money which he may have paid thereon will be forfeited. In case a pre-emption applicant shall neglect or refuse to comply with the terms and conditions above named, and shall so forfeit his pre-emption right, he will also forfeit all improvements that he may have made upon the land.”
As to what the terms of the contract subsequently
The plaintiff, however, concedes that he did not comply with the terms of payment, whatever they were, whereby, according to a clause of the certificate above quoted, he lost “all benefit of his pre-emption right,” his payments previously made, and improvements on the land, unless in some way relieved from the forfeiture. And he endeavors to thus relieve himself by alleging that “during the year 1875, the said defendant, to induce the plaintiff to continue to cultivate and improve the said premises, and' enhance their value, and to finally pay for the same, expressly agreed to
We have exceedingly grave doubts as to whether the petition states a cause of action, but, without expressly deciding this question, we will pass to the evidence of the alleged waiver of payments, and see whether the non-suit granted by the court below, which is the principal error complained of, was proper.
From a copy of the pre-emption certificate, and the other evidence offered by the plaintiff, we learn that the consideration to be paid for the land was ten dollars per acre. Also that the term “ long credit,” mentioned in the petition, meant that for each of the first two years succeeding the purchase, the plaintiff was obliged to pay annually, in advance, six per cent interest on the principal, and annually thereafter one-ninth of the principal, together with interest as above on the amount remaining unpaid. Of these several payments thus provided for in the pre-emption certificate, the only ones made were those of the interest for the first three years, the last two, however, long after they were due; the last one being August 17th, 1874, of the interest due April 15th, of that year. No other payments have ever been made, or tendered. And it is conceded that on October 31st, 1877, the defendant sold the same land to one Allen Price, which is the breach of contract complained of.
“ Signed, A. E. Touzalin,
“ Land Commissioner.”
This waiver, if it may be called such, was not only without consideration, which was essential, and purely voluntary, but fixed no time within which the overdue payments would be received. In this respect it falls far short of supporting the allegation that the times of making payments were postponed as an inducement to the plaintiff not to abandon the land, etc. So far as the evidence shows, nothing more of importance oc
“Simpson S. Reynolds, JSsq., Seward, Neb.:
“ Dear Sir — Having received nothing from you since Sept. 80th, 1874, and having compelled us to pay the taxes for several years on this land, we are inclined to think that it is time for you to do something toward payment of arrearages on your contracts. The condition is such that the land at present is not a source of revenue to us, and we must ask what arrangements you can make respecting the payments long past due, as we cannot carry you longer in this unsatisfactory manner. * * *
“ Signed, A. E. Touzalin, L. C.”
’This letter was received by the plaintiff over four months before the company sold the land to Price, but he did not answer or pay any attention whatever to it. On his cross-examination as to this letter, the following was brought out:
■ Q. You never answered this last letter of the company ?
A. I think not. I thought it was none of their business.
This certainly was a bad showing for the plaintiff himself to make, and it hardly commends him to the court as one who was honestly striving to meet the obligations he had assumed. The company had dealt very leniently with him for several'years, and doubtless would have continued to do so, had he evinced any disposition to do what was reasonable himself. Where one is so flagrantly in default himself in the
After a careful consideration of the evidence produced by the plaintiff, we think the company was justified in treating the pre-emption agreement as abandoned by the plaintiff, and in selling the land to another. There was not evidence that would have justified a verdict for the plaintiff, and the non-suit therefore was-properly ordered.
Judgment aeeirmed.