85 Neb. 209 | Neb. | 1909
This is a second appeal of this case. Our first opinion may be found in 76 Neb. 690. Upon a second trial some additional evidence was adduced and a judgment entered for defendants. Plaintiff appeals.
The action is for a specific performance of an alleged contract for the sale of real estate. A consideration of the evidence sustains the trial court in finding that the parties did not make a contract prior to March 25, 1902. Epperson, C., held that the plaintiff did not accept Melville’s offers contained in the letters of March 25 and August 29, 1902. The letters written by plaintiff’s agent, Brown, are now before us. The first offer authorized Brown to deliver the deed and an abstract for the land to plaintiff upon payment of $500 plus exchange. This offer was not accepted, but the title as evidenced by Melville’s
It is argued that Brown was plaintiff’s agent, and that the deed was delivered at the time the former became custodian of that instrument. Brown, although Sennett’s agent, was also Melville’s representative for the purpose of holding the deed until plaintiff complied with the conditions by him to be performed. Sennett v. Melville, 76 Neb. 690. Until Sennett assented to the conditions, mere possession of the deed by Brown could in no manner prejudice Melville, nor perfect that instrument by delivery.
The judgment of the district court is
Affibmed.