| Neb. | Jul 15, 1881
This is an action upon a written contract to recover for the breaking of forty acres of prairie. The following is a copy of the contract:
“Article of agreement entered into this 3d day of May, 1874, between E. E. Simmons and John Yurann, witnesseth: That E. F. Simmons hath sold and doth agree to convey in fee simple unto said John Yurann, by a good and sufficient deed of general warranty, when the said E. F. Simmons receives the same from the U. S. Land Office, the following premises situated in the county of Hamilton and State of Nebraska, the following real estate, to^wit: The s. of the s. w. qr. section 34, town. 9, r. 6 west. And the said John Yurann does hereby agree to pay the said E. F. Simmons the sum of two hundred and forty (240) dollars, in the manner following: One hundred dollars worth of breaking between the 1st day of May and the 4th day of July, 1874, if possible; if not, the balance during the same season 1875; the balance, $140j at the time of receiving deed. In case-the said E. F. Simmons does not receive deed for the same, he shall pay to the said John Yurann cash at the rate of $2.50 an acre for breaking done. . In testimony whereof, the said E. F. Simmons and John Yurann have hereunto set their hands and seals.
“E. F. Simmons, [seal.]
“John Yurann. [seal.]”
The question to be determined is the sufficiency of the petition. The contract is set out in the petition, and it is alleged that Yurann broke up forty acres of prairie for Simmons, as provided in the contract, and that he has fully complied with the requirements of the same on his part; but that Simmons has not paid for said breaking, nor any part thereof. But there is no allegation that Simmons is unable or has refused to convey the premises described in the contract. For aught that appears in the petition, Simmons may be the owner of this land, and be ready to convey the same. Yurann is entitled to payment in money only in ease he fails to receive a deed, and the petition should state that Simmons cannot or will not make a ■deed; in other words that there is a breach of the contract to convey. As the petition is defective in this respect the judgment of the court below must be re-’ versed. We place no stress upon the form of the contract. As to whether or not the alleged illegality would defeat an action thereon for specific performance, is not before the court. Where a contract is prohibited by statute, a court will not lend its aid to enforce performance of the same. But a case must fall clearly within the prohibition before its enforcement will be denied. As a rule public policy is best subserved by requiring a party receiving the labor or property of another under a contract, to pay the price agreed -upon for the same. The case at bar is a fair illustration. Simmons contracted to convey a portion of his homestead or pre-emption, when he acquired title, the consideration being forty acres of breaking and $140 in money, he promising to pay $100 for the breaking if he failed to obtain title. The breaking was done for him as required; but when he is asked to pay for the
Reversed and remanded.