35 F. 635 | U.S. Cir. Ct. | 1888
This is a bill filed by the plaintiff to enforce the specific performance of a contract for the sale of real estate. The facts are these: Defendant Edward Thompson in tlio summer of 1886 made final proof in the United States land-office, under the timber culture act, and received a final receiver’s receipt. Thereafter lie removed to California. One
“I will give Edward Thompson for the north-west quarter of section 14— 7—10, Adams county, Web., 10,000 dollars as follows, $2,500.00 on making of papers; $2,500.00 in 60 days from'that date; $5,000.00 in 90 days from that date, and the making of a perfect title by the owner. If these conditions are performed by the owner, and I fail to take the land, the $200.00 this day deposited shall be forfeited and paid to the owner of the land, or his order.
[Signed] ’ “ J. H. IIushton.”
Immediately a telegram was sent to defendant in these words;
“Edward Thompson, Los Angeles, Gal. Am offered ten thousand dollars for farm; twenty-five hundred cash, twenty-five hundred in sixty days, five thousand in ninety days. Shall we sell? Answer.
[Signed] “George E. Work. Per D.”
To which he replied as follows:
“January 13, 1887. ■ Dated, Los Angeles, Cal., 13. To George F. Work, City. All right. Draw^papers, and send me immediately for signature.
[Signed] “Edward Thompson.”
A deed was prepared with full covenants of warranty, and forwarded to the defendant for execution, and returned by him immediately to George F. Work, together with the receiver’s final receipt, and a lease, which he had given on the land for a year, duly assigned. On the receipt of these papers the plaintiff called at the office of Dugan & Work, and, finding that no patent had issued, and that the only title held by the defendant was that evidenced by the receipt, and also the existence of this lease for a year, declined to complete his purchase unless the title was perfected by the patent and by the removal of the leasehold interest. He made a tender of the $2,300 necessary to complete the first payment, as well as the notes and mortgage to secure the balance, and demanded full performance of the contract. On the other hand, Dugan & Work, finding that the plaintiff was unwilling to accept title as it stood and complete his payment, tendered back the check which had been left with them, and demanded a return of the receipt which they had given. It appears also that the defendant’s object in selling was to realize some money to complete a proposed purchase of property in California, and therefore cash, or its equivalent, was a matter of urgency with him. Also that the plaintiff was offered, in the letter announcing the arrival of the papers, $12,000 for the land, and told that the “boom ” was still on. It seems to be assumed by plaintiff that, if a valid and binding contract was created between himself and defendant, equity will,' as a matter of course, decree a specific performance; but this is far from true. The law will always award damages for breach of a contract, and