17 Neb. 478 | Neb. | 1885
This is an action for specific performance of a contract. The court below found the issues in favor of the defendants and dismissed the action. The action is founded on the following instruments:
“Alma, Neb., July 2d, a.d. 1879.
“I have this day sold A. M. Shuman lots 5 and 6, in block 13, in the town of Alma, county of Harlan, and state of Nebraska, for the sum of one hundred dollars, to be paid in carpentering at $2.50 per day; he to do good average days’ works and to have five days’ notice of time when work is wanted, and to complete payment within twelve months if work is called for. He to be allowed twenty per cent discount on any part of price of lots paid in cash. He to pay taxes of ’79 and to have deed in fee on final payment.
“R. C. Willets,
“By Wells Willets, attorney in fact.”
“Alma, Neb., July 2d, a.d. 1879.
“ I have this day bought of R. C. Willets lots No. 5 and fi, in block 13, in the town of Alma, county of Harlan, and state of Nebraska, for the sum of one hundred dollars, to
“J. M. Shuman.”
It is alleged in the petition and not denied in the answer that A. M. Shuman, named in the first instrument, is M. Shuman, the plaintiff.
The defendants in their answer to the second amended petition admit that R. C. Willets at the date of the contract was the owner of the lots in question; admit the authority of the agent; allege that the plaintiff refused to. perform the carpenter work after due notice to perform the same. That on the 10th of October, 1879, the defendant,. R. C. Willets, notified the plaintiff to work after the expiration, of five days, and that plaintiff refused to comply with his request; that afterwards it was agreed between said parties that the plaintiff would commence work after the 25th of October, 1879, and labor continuously-until he had paid said sum of $100, but that he failed to perform said labor; that afterwards on the 20th off November, 1879, the defendant, R.. C. Willets, after making a demand for said sum of $80 which the plaintiff refused to pay, notified him that said contract was canceled,, and the plaintiff acquiesced in said rescission; that after said rescission said R. C. Willets conveyed said lots to one Frank Shaffer, who afterwards conveyed to the other defendants. On the 2d day of July, 1880, the plaintiff tendered the-agent of the defendant, Wells Willets, the sum of $80, which he refused, and in October following, the plaintiff commenced this action. In his testimony the plaintiff denies that he had an opportunity to do carpenter work. He testifies: “I have never received any notice except once. In
Q,. How long was that before you purchased the lots?
A. I think it was a little before.
Q. Is it not a fact that it was after the purchase of the lots by you, and you heard that he claimed an interest, in them and you wanted to buy it?
A. I think it was before.
Mr. Shaffer, therefore, having purchased with notice of the plaintiff’s rights, purchased subject to them. The other defendants purchased while this suit has been pending, and since the service of summons in the case, and are chargeable with notice of the plaintiff’s rights. Code, § 85. Day v. Thompson, 11 Neb., 123. It is evident from an examination of the testimony that the plaintiff, at the time the contract was made, was a poor man, that the provision to permit him to perform labor in part or entire payment of the lots was not so much because his labor possessed a peculiar value over that of other carpenters, but to enable him thus to pay for the lots. It will be observed the provision is, that he is “ to complete payment within twelve months if the work is called for,” and that he is “to be. allowed 20 per cent discount on any part of lots paid in cash.” When to be paid in cash? Clearly at any time during which he might be required to perform labor as a carpenter. This included at least the whole year, yet we find the defendant, Willets, within five months from the date of the contract with the plaintiff, selling and conveying the lots in question to Shaffer, upon the pretext that he had been compelled to employ another carpenter for a week’s work at an expense of $12, a gain of $3 over the price agreed upon to be paid the plaintiff. But even if the plaintiff had refused to perform labor for the defendant at his request, still there is no provision in the contract that it shall thereupon become null and void, and a cour,t has no authority to interpolate such terms therein. In construing a contract that construction which makes the contract legal and operative will be preferred to one which would have the opposite effect. Coke Litt., 42-183. Church
II. The jurisdiction of courts of .equity to decree specific performance of contracts for the sale of real estate is not limited, as in cases respecting chattels, to special circumstances, but is universally maintained. Gartrell v. Stafford, 12 Neb., 551. Vindquest v. Perky, 16 Id., 284. If a contract for the conveyance of land is in all respects fair, and there are no insurmountable difficulties in the way of a specific performance, it is as much a matter of course for a court of equity to decree specific performance of the contract as it is for a court of law to award damages for its breach. Greenaway v. Adams, 12 Ves., 395. St. Paul Div., etc. v. Brown, 9 Minn., 151. King v. Hamilton, 4 Pet., 311. As was said by Sir William Grant, in Hall v. Warren, 9 Ves., 608: “Supposing the contract to have been entered into by a competent party, and to be in the nature and circumstances of it unobjectionable, it is as much of course in this court to decree specific performance ns it is to give damages at law.” Bennett v. Smith, 10 Eng. L. & Eq., 274. Gartrell v. Stafford, 12 Neb., 546. Adderly v. Dixon, 1 Sim. & Stu., 607. Story’s Eq., § 746.
III. During the pendency of this action several wooden buildings have been erected on the lots in question. These appear to have been cheap structures, not affixed to the soil, and to which the plaintiff makes no claim In 1883 one of the attorneys for defendant was possessed of one of these buildings, and rented the same to the plaintiff, as he claims and as the evidence tends to show, at $4 per month, for six months. The plaintiff seems to have claimed the lots at this time, and the attorney testifies that he told him “ if the lot is yours the building is.” The plaintiff then refused to pay rent, and was ousted in proceedings in forcible entry and detainer. The plaintiff did not claim the buildings, but did claim the lots; and these proceedings do not estop him from asserting his rights.
IV. The defendants claim that the plaintiff did not intend to complete his contract if the town did not prove a success and lots advance in price, and Mr. Shaffer testifies that in the fall of 1879 he heard him make the following statement: “ I have got a contract on some lots here; I don’t know whether the town is going to make a place or not,” and he said, “if lots go up I will make some money out of them, and if they go down I won’t lose much.” It will not be seriously contended that sueh language indicates an intention to abandon the contract. Upon the whole case
Decree accordingly.