93 Neb. 809 | Neb. | 1913
This case is before us on the ruling of the district court for Dawson county sustaining a demurrer to plaintiff’s
Tt was further alleged that the original tract of land, for which plaintiff obtained said option contract, consisted of 1,620 acres, exclusive of the right of way of the railroad ; that according to the terms of said option contract, all of which were fully known to the defendant, both before and after the signing of the contract between the plaintiff and the defendant, the plaintiff agreed to pay the sum of $1.9 an acre, or $30,780; that after selling to defendant- said 1,000 acres, plaintiff still had left 620 ■acres lying on the opposite side of said railroad right of way; that-, if defendant had not defaulted in his contract with plaintiff, said 620 acres of land would have cost plaintiff only the sum of $780; that said 620 acres of
It was further alleged that on February 27, 1910, the defendant notified plaintiff by telephone that he had decided to perform and complete his contract in accordance with the terms thereof; that he desired plaintiff to be ready to perform his part of the agreement, and plaintiff thereupon agreed to meet defendant at Chappell, Nebraska, for the purpose of completing and performing their said contract, and plaintiff notified defendant that he would be there, ready, willing and able to perform his
To the petition the defendant filed a general demurrer, which was sustained, and the plaintiff refusing to further plead, and standing upon his petition, his action was dismissed.
It is contended that the district court erred in sustaining the demurrer to the plaintiff’s petition and dismissing the action. It was alleged in the petition that the plaintiff was ready, able and willing to perform his contract on his part. On the other hand, it is claimed that the plaintiff had nothing but an option on the land in question, and therefore had nothing which he could convey. It was alleged in the petition, however, that plaintiff Avas ready, willing and able to convey the premises to the defendant on the 1st day of March, 1910, and this allegation stands admitted by the demurrer.
In Krhut v. Phares, 80 Kan. 515, it was held: “A con
It must be observed that in the case at bar the defendant had knowledge of the terms and conditions of the plaintiff’s option, and it is alleged in the petition that defendant understood the fact to be that it was necessary for him to make the first payment in order to enable the plaintiff to secure bis option and convey the land in ques- ¡ tion to the defendant according to his contract. In such a case the plaintiff may recover the damages that are fairly within the contemplation of the parties at the time the contract was entered into. Pillsbury v. Alexander, 40 Neb. 242; Canfield v. Tillotson, 25 Neb. 857; Weitizel v. Leyson, 23 S. Dak. 367; 29 Am. & Eng. Ency Law (2d-ed.) 609. Our court has frequently recognized the rule permitting the recovery of special damages which are - contemplated by the contract. Wittenberg v. Mollyneaux, 55 Neb. 429; Western Union Telegraph Co. v. Wilhelm, 48 Neb. 910; Hale v. Hess & Co., 30 Neb. 42; Schrandt v. Young, 2 Neb. (Unof.) 546; Kitchen Bros. Hotel Co. v. Philbin, 2 Neb. (Unof.) 340; Seaver v. Hall, 50 Neb. 878; Beck v. Staats, supra. The general rule, subject to qualifications hereinafter noted, for the measurement of dam- - ages sustained from the breach of the contract limits a party to such damages as arise out of a contract which has . been broken, and which follow in the natural .course of-, events from the breach itself, or.which were within the , contemplation of the parties when making the contract in
Tlie amended petition brings the case squarely within the above rule. The profits which are in the contemplation of the parties at the time the contract is made may be recovered. 13 Cyc. 36; Howard v. Stillwell & Bierce Mfg. Co., 139 U. S. 199; Mayne, Damages (8th ed.) 12; Guetzkow v. Andrews & Co., 92 Wis. 214; Allis v. McLean, 48 Mich. 428; Carlson v. Stone-Ordean-Wells Co., 40 Mont. 434, 107 Pac. 419; Emerson v. Pacific Coast & Norway Packing Co., 96 Minn. 1; Wilson v. Wernwag, 217 Pa. St. 82. ’
The petition alleged sufficient facts, if true, to constitute a cause of action; and the demurrer admits the truth of all matters well pleaded in the petition. It follows that the judgment of the district court should be, and is, reversed, and the cause is remanded for further proceedings.
Reversed.