57 Neb. 592 | Neb. | 1899
On March 26, 1895, Theodore H. Te Poel and Elias B, Shutt entered into a written contract for the exchange of farms. Both parties and their wives signed the agreement, a copy of which follows:
“Tekamah, Neb., March 26,1895.
“This memorandum witnessetli, that Theodore 11. Te Poel has this day traded to Elias B. Shutt his Burt county, Nebraska, farm of 400 acres, being the southwest quarter northwest quarter and east half northwest quarter and west half northeast quarter and southeast quarter, all in section No. 33, and the southwest quarter southwest quarter of section No. 34, all in township 22 north, of range 11 east of the 6th P. M., at the agreed price of $12,000, for the Saunders county, Nebraska, farm*596 of 330.92 acres of said. Elias B. Shutt at the agreed price of $14,891.40. Theodore IT. Te Poel agrees to procure release of all incumbrances against his farm and place the same of record and furnish abstract of title to his farm showing perfect title in him, and to execute to said Elias B. Shutt a general warranty deed for the same. The said Elias B. Shutt agrees to incumber his Saunders county farm for $5,000 for five years, at six per cent annual or semi-annual interest, or for such greater amount as he may be able to procure thereon at said rate of interest, and to execute to said Theodore H. Te Poel a general warranty deed, subject to such mortgage as he may put thereon in accordance with the foregoing agreement, which mortgage and interest said Te Poel, by the terms of such deed, shall assume and agree to pay, . Said Shutt shall also furnish an abstract of title to the Saunders county land from date of said loan to the time of exchange of deeds, showing perfect title in him except said mortgage. For his trouble and expense in the matter of getting loan Te Poel agrees to pay Shutt $70 extra above agreed price, and Shutt agrees to get loan as soon as possible, and when funds are so borrowed the deeds above provided for shall be exchanged and delivered, or within forty days at the most. Said Te Poel shall agree with his creditors who have liens upon his lands as to amount due them, and said Shutt shall pay the creditors the sevéral amounts agreed upon by said Te Poel with them to the extent of the proceeds of the loan, if so much is required to pay the incumbrances on Te Poel’s farm. The balance of purchase price ($2,891.40) said Te Poel agrees to pay in cash to said Shutt when deeds are exchanged as above provided for, less any amount of funds that may remain in*hands of said Shutt out of proceeds of loan after making payments to creditors of Te Poel as above provided. The land to be deeded by said Shutt is the east half northeast quarter and east half southeast quarter section 1, township 16, range 7 east, and lots No. 1 and No. 2, section 6, and northwest quarter section 5, and fractional*597 northeast quarter section 7, all in township 16 north, range 8 east, Saunders county, Nebraska, being 330.92 acres. Each party shall assign'insuranoe policies in force on buildings on premises,’ and any difference in value shall be paid in cash on basis of pro rate. It is agreed that possession shall not be given by either party until March 1, 1896. Te Poel is to have use of rents of Burt county farm and Shutt is to have use of rents of Saunders county farm. J. R. Force shall pass on abstract to be furnished by Te Poel. ’ Theodore Te Poel.
“Bora Te Poel.
“Eiras B. Shutt.
“Janiza A. Shutt. .
“In presence of
“James R. Forre.”
This suit, rvas instituted bj^ Theodore H. Te Poel to enforce the specific performance of the contract set out above, and from, a decree in’ his favor the defendants Shutts appeal.
They contended in the trial court, and so insist here, that time was made the essence of the contract, Avliich required the conditions and stipulations of the parties to be fully performed within forty days from the date of the. agreement; that the plaintiff Avholly neglected, failed, and refused to comply Avitli the terms of the contract on his part to be performed Avithin the stipulated time; and that defendants either did all things required of them by and under the provisions of the contract, or Avere ready, willing, and able to comply with every condition imposed upon them Avithin the specified period. If these contentions of the defendants are well founded, it is perfectly plain that the decree is Avrong, and must be set aside. It will be observed that the contract required of each party the performance of several things, and in more than one particular the act stipulated to be done by one hinged upon the performance by tlie other party of another distinct condition. Thus, Elias B. Shutt, among other duties, was required to procure a loan as soon as possible-
The record sIioavs that Shutt never obtained a loan on his farm according to the terms of the contract, but did effect a loan about April 26, 1895, for $4,500 only, which sum was $500 less than the amount required, and left with J. E. Force a blank note and mortgage for Te Poel to execute to Shutt for $500. It is claimed that the latter could not borrow but $4,500 on the land, and the taking of a mortgage to himself for the remaining $500 was a substantial compliance with the terms and conditions of the contract in question. In this vieAV we are not able to concur. The question is not whether the giving of two •mortgages aggregating $5,000 was as favorable to Te Poel gs though Shutt had procured a loan of $5,000 and
Shutt never furnished' an abstract of title to his lands to Te Poel as he offered to do. He procured on May 1, 1895, and introduced in evidence op tfie trial? a certificate
The defendants attempted to show on the trial by parol evidence that at the time the contract was entered into it was the general understanding of the parties that in case the loan was obtained, for which provision was made in the contract, such fact should relieve the necessity of furnishing an abstract. The offered testimony on that branch of the case was excluded, and the ruling is now assailed. The testimony was clearly inadmissible and was properly ruled out, since parol evidence of a prior or contemporaneous agreement is inadmissible to vary the terms of a written contract. (Mills v. Miller, 4 Neb. 443; Hamilton v. Thrall, 7 Neb. 210; Dodge v. Kiene, 28 Neb. 216; Kaserman v. Fries, 33 Neb. 427; Mattison v. Chicago, R. I. & P. R. Co., 42 Neb. 545; Maxwell v. Burr, 44 Neb. 31; Waddle v. Owen, 43 Neb. 489; Commercial State Bank v. Antelope County, 48 Neb. 496.)
In the next place, the rulings of the trial court on the admission or exclusion of evidence are not reviewable in a case brought to this court on appeal. (Ainsworth v. Taylor, 53 Neb. 484; Walker v. Smith, 54 Neb. 31.)
Shutt executed a warranty deed for his lands to Te Poel, and within forty days from the time the contract was made placed the same, with the check and certificate of the register of deeds already mentioned, in the hands of J. R. Foree; but the conveyance was never delivered or tendered to Te Poel, nor did Foree have any authority to receive the deed for plaintiff. He was merely to pass upon plaintiff’s abstract, and in so doing was the agent only of Mr. Shutt. A tender to any one other than Foree would have been just as effectual as a tender. Immedb ately on the expiration pf the forty days from the execip
The evidence adduced by'the plaintiff on the trial tends to establish that he complied with all the duties imposed upon him by the terms of the contract, at least so far as the acts of Shutt, or his refusal to perform his obligations, would permit Te Poel to do. The respective stipulations of the parties were in some respects at least mutual and dependent, and were to be performed simultaneously, so that Shutt could not rescind the. contract until he had tendered performance of the stipulations imposed upon him, nor could he fake advantage of any default of the plaintiff, occasioned by his laches. (Crabtree v. Levings, 53 Ill. 526.) The record shows that on May 8, 1S95, Te Poel sent his son to Slmtt’s home to inform him he was ready to exchange deeds, and three clays later Te Poel, with witnesses, went to Shutt and requested that he carry out the terms of their contract, which the latter peremptorily declined to do. Plaintiff tendered Shutt a warranty deed for the lands and insurance policies, with the balance of consideration, also amount of money required to pay off all liens against the property, informed him of the sum due liis creditors, and caused an abstract of title to be made and submitted to J. E. Foree. Shutt threw the paper on the ground and declined to accept or consider the tender. Under the evidence the court was justified in finding the plaintiff had so far performed the contract on his side as to entitle him to a specific execution of the agreement by the defendants.
Counsel for Shutt argue in their brief that the time
It is urged that relief should be refused plaintiff because he mortgaged his farm on August 14, 1895. It is true he executed a mortgage to his brother on that date,
Another argument advanced . by appellants is that Shutt is not the present owner of the title to the lands which he was to exchange. The record shows that the Shutts executed a deed purporting to convey the legal title to the property to John Hebebrand, the person to whom, after the alleged rescission of the contract in suit, Shutt agreed to convey lands. This deed Avas never delivered to the .grantee, nor was he aware of its existence until a short time before the cause was called for trial in the district court. MoreoATer, Hebebrand was not a bona fide purchaser, since he had knowledge of the existence of the rights of the plaintiff. Besides, Hebe-brand was made a party to this suit, and he has not appealed from the decree. The making of the deed by Shutt is no defense to the present suit. (Snowman v. Harford, 57 Me. 397; Welfley v. Shenandoah Iron, Lumber, Mining & Mfg. Co., 3 S. E. Rep. [Va.] 378.)
The decree is faulty in one particular. It requires Te Poel aloue to convey his lands to Shutt. It should have required Mrs. Te Poel to have joined in the conveyance. Shutt Avas entitled to receive a Avárranty deed executed by plaintiff and his wife before he could be required to convey to Te Poel. It is suggested in the brief of counsel that Mrs. Te Poel died before the decree was rendered; but the record fails to verify this statement. The decree, in the respect just indicated, will be modified, and in all other particulars it is affirmed.
Decree modified.
See ante, p. 593.