109 Neb. 853 | Neb. | 1923
Action at law was begun by plaintiff to recover from defendants a payment that had been made by plaintiff on a contract for purchase of land. The defendants Baker and Peterson, appellants, in their answer denied plaintiff’s right of recovery, and prayed for specific performance of the agreement. The issue, therefore, be
Error is alleged in the giving and refusal of several instructions; in receiving the testimony of witness Doran as to value of the property; in the court’s refusal to direct a verdict for defendants,and that the verdict and decree are not supported by sufficient evidence. When a jury is called by the court in an equitable proceeding, their verdict is advisory only. No error can be predicated on the giving or refusal of instructions. Peterson v. Estate of Bauer, 76 Neb. 652. It is very doubtful if the knowledge of the value of the land, shown by the witness Doran, was sufficient to permit him to testify (hereto, but its admission, if erroneous, was without harm, for the value of the land was not submitted to the jury, and it is evident the jury disregarded it. These alleged errors being thus eliminated, the cause must be determined by this court on the pleadings and evidence.
By the admissions of the parties in the pleadings and the evidence, it is established that plaintiff, a retired hardware merchant, about 60 years of age and in poor health, and with little experience in real estate transactions, lived at Erickson; that O. B. Clark was an old and trusted friend and former fellow townsman; that
It is urged by appellants that plaintiff must have known from Clark’s statements and actions that he was acting as agent for appellants, and there are circumstances that strongly point that way. If the plaintiff had been less credulous, he might have found the truth, and, under other circumstances, his failure to make further investigation might well bar him from relief. It caxi hardly be said that plaintiff was dealing at arm’s length with his trusted friend Clark. However, it is certain that he succumbed to the insistent and unfair pressure. The plaintiff’s expectations were unduly inflamed and he was pressed into the contract by insistent and unfounded representations, some of which might be ground for rescission, such as statements that Lowden’s brother-in-law was ready and able within 90 days to buy the land at an advanced price. 39 Cyc. 1275.
It has been frequently held by this court that specific' performance is not generally a legal right, but is directed to the sound legal discretion of the court, and it will not'be granted where its enforcement would be unjust, and thé courts will be governed to great extent
There is. much testimony and discussion in the briefs as to plaintiff’s offer at one time to perform and defendants’ inability to comply, and various attempts to make settlement, all of which appears unnecessary for us to heed, in view, of the decision reached. .
The decree of the district court is ■
Affirmed.,