96 Neb. 751 | Neb. | 1914
In December, 1906, plaintiff and defendant entered into a written agreement for the exchange of lands, in and by which plaintiff agreed to convey to defendant a tract of land in Dundy county, Nebraska, containing 963 acres, :and defendant agreed to convey to plaintiff a tract of
Three principal grounds for reversal are regularly assigned and urged in defendant’s brief, while a fourth is incidentally included within his second assignment. We
“1. The petition does not state facts sufficient to constitute a cause of action.” The substance of this contention is that plaintiff’s action is based upon the second agreement, and that the provision in that agreement, requiring defendant to pay anything on the mortgage covering the-Missouri land which he was conveying to plaintiff, was-not binding upon defendant, for the reason that it was: wholly without consideration; that the first agreement in no manner required defendant to pay this mortgage or-any part of it. We are unable to agree with counsel in. this contention, for the reason that the agreement to convey set out in the first contract, as construed by the parties themselves in the second, contemplated conveyance by each party of the lands which he was conveying to the other, free of incumbrance. The district court properly construed the contract as did the parties themselves.
“2. Error in assessing the amount of recovery.” It is a sufficient answer to this assignment to say that the error, if any, in assessing the amount of recovery was in favor-of defendant and against plaintiff.
“3. One who refuses to perform his part of a contract cannot recover for a breach by the other party.” While the evidence upon this point is conflicting, it is ample to-sustain the finding that plaintiff did not refuse to perform his part of the contract, but, on the contrary, in every reasonable manner-attempted to comply with the terms thereof.
The fourth contention, which, as we have stated, incidentally appears under the second assignment, is that plaintiff’s actiqn was prematurely brought, the contention being that by the terms of the second agreement plaintiff was only required to pay the remainder “due” on the mortgage debt; that he was not to pay it in advance of maturity or at a time to be fixed by himself; that he was to pay it when due, and should have waited until maturity
Finding no error in the record, the judgment of the district court is
Affirmed.