83 Neb. 36 | Neb. | 1908
On August 18, 1904, defendants executed and delivered to one F. A. Schmalle, a contract for the sale of the lands in controversy, and at the same time, and as a part of the same transaction, executed and delivered to Schmalle a bill of sale for certain articles of personal property. Subsequently, and prior to September 15, 1904, Schmalle assigned both the contract and bill of sale to plaintiffs. As á matter of fact, Schmallé had no interest in the transaction, but simply acted as a dummy for the plaintiff's, receiving a fee of $10 for his services. The contract called for the payment of $6,850, $1,000 of which was paid at the time of its execution, and the remainder was to be paid on or before September 15, when defendants were to convey the land by fee simple title, furnish an abstract, etc. At the time the contract was entered into there was -pending in the district court for Madison county a suit by one Mali ala Jane Volgamore to recover a dower interest in one of the quarter sections of land in controversy here, which suit had been tried and submitted, but not yet decided. On September 15 defendants, knowing nothing of the assignments from Schmalle to plaintiff's, executed a warranty deed to the lands in controversy to Schmalle, and tendered it to the plaintiffs, who they had been led to believe were acting for Schmalle. They were then informed by the plaintiff Luikart that the plaintiffs had obtained an assignment of the contracts and a quitclaim deed from Schmalle. Defendants thereupon, on the same day, prepared a new deed to plaintiffs, and tendered it to plaintiffs and demanded the payment of the remainder of the purchase price. Plaintiffs refused to accept the deed, on the ground.that the Volgamore suit was still pending against the land, and that defendants could not make a clear title, and further stated that they were ready to pay the remainder of the money whenever defendants could make them a clear title. The defendants stated that they had done all they could, and, if
For answer defendants allege: (1) That plaintiffs, with full knowledge of all the facts and circumstances of the transactions, on the 22d day of November, 1904, commenced an action at law in the district court for Madison county for a return of the $1,000 which-they had paid, and for other damages by reason of defendants’ failure to convey, in the sum of $4,300, making an aggregate of $5,300; (2) that, in arranging the terms of the sale with Schmalle, defendants told Schmalle all about the Volga-more suit, and that, if they sold said farm to Schmalle, he must take the same subject to such suit, and that
For reply plaintiffs aver that at the time said action was commenced the Volgamore suit was pending, and that before the commencement of this action the said Volga-more suit was determined and adjudicated in favor of defendants, and thereupon said action for damages was dismissed by plaintiffs without prejudice, and this action commenced; that at the time this action was commenced defendants were able to comply with the terms of the contract, and deny all of the other allegations of plaintiffs’ petition. Subsequently a supplemental petition and an ansAver thereto were filed; but, in the light of the disposition Avhicli must be made of the case, it is unnecessary to refer to them.
The district court found in favor of plaintiffs and against the defendants, and that the $1,000 of the agreed purchase price of $6,850 had been paid; that there still remained unpaid $5,850; that the value of the personal property referred to in the contract was $730, a: defendants had wrongfully converted the same tc own use; that said sum of $730, the value of the property, should be deducted from said $5,850, 1
The evidence shows that Schmalle was a minister of the gospel; that, when he first called upon defendants to try and purchase their farm, he told them that he was tired of preaching, and wanted to go on a farm; that defendants first asked $10,000 for the farm, which amount Schmalle stated was entirely too much, that there were present at that interview Schmalle, Mr. and Mrs. Driffkorn, defendants, and their son; that Mrs. Driffkorn, in whom the title to the land stood,* stated to Schmalle that she could not sell the farm because there was a suit against the land by Mrs. Volgamore for a dower; that Schmalle said he knew all about that suit, and that he take the land subject to it, and for that reason he have it at a less price. They failed to come to-on the terms, and separated. The next day e and plaintiff Luikart again went tp the farm,
The question as to whether or not plaintiffs were justified in refusing to receive the deed tendered September 15 and pay the remainder of the purchase money, in our judgment, turns upon the question- as to whether or not they purchased the land from Mrs. Driffkorn with full knowledge of the Volgamore suit, and subject thereto. Mr. Luikart testified that he never heard of the Volgamore suit until after the contract had been signed and he had ordered an abstract of the land. Plaintiff Stanton, however, admitted that he had heard of the Volgamore suit, but -supposed that it had been settled. If he had heard of the Volgamore suit before the contract was entered into —a suit which involved a substantial 'interest in the lands he was purchasing — and then, on the strength of a mere rumor that that suit had been settled, joined with Mr. Luikart in paying a substantial sum of money as an advance payment on the purchase of such land, he certainly acted very differently from what prudent men ordinarily act under such circumstances. However that may be, it seems to us that it is unnecessary to consider what knowledge either Mr. Luikart or Mr. Stanton may have had of the. Volgamore suit, if their agent, Schmalle, whom they had sent to make the purchase, was fully advised of that suit at the time he was conducting his negotiations with Mrs. Driffkorn, and agreed to purchase the farm -subject thereto. On this branch of the case there is a conflict in the testimony. Schmalle says that no such statements-were made or agreement had. Mrs. Driffkorn and her husband and their son all three testified unqualifiedly that Mrs. Driffkorn spoke about the Volgamore suit; that Schmalle -said he knew all about it; and the testimony of at least one of these witnesses shows that he used the Volgamore suit as an argument for beating down the price. In the face of this testimony as applied to the law which we have laid down on the subject, we think the district court erred in granting plaintiffs specific perform
It is also Avell settled in this court that courts of equity will not always enforce a specific performance of a contract. In Morgan v. Hardy, 16 Neb. 427, we said: “Such applications are addressed to the sound legal discretion of the court, and the court will be governed, to a great extent, by the facts and merits of each case, as it is presented. * * * Specific performance will not be enforced unless the contract has been entered into with perfect fairness, and without misapprehension, misrepresentation, or oppression,” And in Clarke v. Koenig, 36 Neb. 572, we said: “Specific performance is not generally a legal right, but rests in the sound, legal, judicial discretion of the trial court. * * * A party invoking the equity poAvers of a court to enforce specific performance of a contract, Avhich he claims is for the sale to him of real estate, must exhibit a contract unambiguous and certain.”' In Kofka v. Rosicky, 41 Neb. 328, Ave said: “Specific performance is a matter of discretion in a court which withholds or grants relief according to the circumstances of each particular case, where the general rules and principles governing the court do not furnish any exact measure of justice betAveen the parties.” As early as Morgan v. Bergen, 3 Neb. 209, Ave said: “In an action for specific performance, the contract sought to be enforced must be clearly established, and the acts of part performance must unequivocally appear to relate to the identical contract upon which the action is brought.” The above holdings of this court are eminently sound, and should be strictly adhered to. In the light of the law as
There is another reason why we think the court in the exercise of its discretion should have denied specific performance in this case. When the defendants tendered the deed on September 15, and it was refused by plaintiffs, defendants immediately offered to return the $1,000 Avhich had been paid. This plaintiffs refused, stating that they were ready to pay the remainder of the purchase price whenever defendants could give them a clear deed. If they had stood upon that ground, they would have occupied a more equitable position before the court, but they did not do so. On the contrary, on November 22 they commenced their action at law, hereinbefore referred to, in which they sought to recover back the $1,000, and damages for the failure of defendants to convey. Having commenced that action, we think defendants had a right to assume that plaintiffs no longer intended to insist upon
Without pursuing the matter further, we think that the judgment of the district court should be reversed and the cause remanded, with instructions to the district court to dismiss plaintiffs’ suit at plaintiffs’ cost, upon the defendants paying into court the sum of 81,000 for plaintiffs’ use, within a reasonable time to be fixed by the court, and we so recommend.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded, with, instructions to the district court to dismiss plaintiffs’ suit at' plaintiffs’ cost, upon the defendants paying into court the sum of fl,000 for plaintiffs’ use, within a reasonable time to be fixed by the court.
Judgment accordingly.