147 F. 367 (8th Cir. 1906), 2,387, Moore v. Beiseker

Docket Nº:2,387
Citation:147 F. 367
Party Name:MOORE v. BEISEKER et al. [1]
Case Date:July 09, 1906
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 367

147 F. 367 (8th Cir. 1906)



BEISEKER et al. 1

No. 2,387

United States Court of Appeals, Eighth Circuit.

July 9, 1906

Page 368

[Copyrighted Material Omitted]

Page 369

As this case went off on demurrer to the petition, it will be necessary to set out the substance of the petition, which is unusually long.

The plaintiff in error (hereinafter for convenience designated the plaintiff), a citizen of the state of Iowa, entered into a written contract with the defendants in error (hereinafter designated the defendants), citizens of the state of North Dakota, on the 21st day of November, 1901. By said contract the defendants agreed, in consideration of the sum of $500, to sell to the plaintiff the right for thirty days therefrom to purchase certain lands in McLean county, N.D., aggregating about 11,000 acres, for the price of $76,180, or at the rate of $6.75 per acre for the land conveyed, said lands to be conveyed by good and sufficient conveyance, clear of incumbrances, for said consideration and price of $76,180, more or less; being with said $500, at the rate of $6.75 per acre, payable as follows: (1) One-third cash in 30 days from the date of the contract; and (2) the balance in three promissory notes of the plaintiff, each for one-third of said balance, dated December 21, 1901, due on or before December 21, 1902, 1903, and 1904, with interest at 6 per cent. from date, payable annually, the notes to be secured by first mortgage on the lands purchased, or mortgages on different portions, as the defendants might desire, payments to be made at the National Bank of Commerce of Minneapolis, Minn.

The contract provided that the lands should be as good as average good farming lands in said county; that said $500 should be paid by the plaintiff at the execution of the contract to one Eugene D. Case, of Minneapolis, Minn., to be held by him until such time, within said 30 days, as he might determine whether or not said lands were of said quality. Should he determine them to be of such quality, or should fail to notify the parties in writing within said 30 days that the lands were not of the required quality, under the agreement, then said $500 was to be immediately paid by said Case to the defendants. Should the said Case determine that said lands were not of the requisite quality, he was to notify the parties thereof within said time, when the $500 should be repaid to the plaintiff, and the agreement should end. On the payment by the plaintiff of the cash payment and delivery of the notes and mortgage or mortgages provided for, within 30 days from the date of the contract, the defendants were to convey or cause to be conveyed to plaintiff said lands by good and sufficient conveyance; and they were to deliver to the plaintiff complete abstracts of title to said lands, who should have 10 days in which to examine the same after delivery; and should it be found that any of the lands were not owned or controlled by the defendants, or the title to any of them should prove to be otherwise defective, such lands were to be excepted from the lands to be conveyed, and the purchase price reduced at the rate of $6.75 per acre for every acre so excepted, according to the defendants the right to substitute for the lands so excepted, or add to the first above described at the same price per acre, other lands in said county owned or controlled by them, subject to the same conditions, the total consideration being increased or decreased at the rate of $6.75 per acre.

The petition alleged the payment of the $500 by depositing the same with said Case, and that the plaintiff did accept said lands as coming up to the required quality, by letters written to the defendants and said Case, dated December 14, 1901, which letters are filed as exhibits to the petition;

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the petition alleging that thereby the plaintiff notified them that he would take the land contracted for; that he was ready to close the deal as soon as the abstracts were examined according to the contract. The letter to Case directed him to pay the $500, to apply on the purchase price of the land,-- the receipt of which letters were duly acknowledged. It is further averred that the defendants failed and neglected to furnish abstracts to any of the lands until long after the expiration of the 30 days; and that by consent the defendants finally furnished abstracts to a large portion of the land (describing the same), designating the lands described as Exhibit A, on August 3, 1902, and the lands described in Exhibit A-1 on August 24, 1902, and that, notwithstanding the abstracts had not been furnished within the time required, the plaintiff accepted title to all said lands described in both said exhibits, and notified the defendants in writing thereof August 12, 1902, as to the lands described in Exhibit A and on August 29, 1902, as to the lands described in Exhibit A-1. On August 1, 1902, the defendants, through their duly authorized agent, said Case, wrote to the plaintiff, sending him abstracts to a large number and descriptions of land, and therein made the request and proposal as follows: 'Will you kindly advise me as promptly as may be as to how many abstracts you deem perfect, as we would like to close up the deal for this and the last lot, and make arrangements for extension of the remainder, so that we may bring such action as seems necessary. ' (Having reference to actions to perfect title.)

This letter was received by the plaintiff on August 2, 1902. The said Case further wrote to plaintiff on August 2, 1902, that on that day he had sent by express to plaintiff a package of abstracts with lists, exhibits and letter of explanation, inclosing an omitted page of the letter in said package, with a request to insert the same in the letter of explanation. In this letter he further stated that he expected Mr. Helmich would be home the next day, when they would get to hard work on the remaining abstracts, but expressed a desire to settle up on those thus forwarded if the plaintiff was agreeable thereto. On receipt of said letters, on August 12, 1902, the plaintiff consented to the modification and change of said original contract as proposed in said letters from said Case, and advised him of the examination and acceptance of the abstracts of title to the lands described in said Exhibit A, covering about 4,500 acres, and in said letter said: 'In accordance with your suggestion in your letter I am ready to close the purchase of the above-described land and to close the purchase of the other land as fast as the titles are acceptable. The titles to these to be submitted as fast as they are ready, and the deal consummated as fast as titles are perfected, and all titles to all the lands in my contract to be perfected and all the lands to be delivered to me according to the terms of my contract by December 10th next.'

On August 25, 1902, said Case acknowledged receipt of the above letter, and stated that Mr. Beiseker thought that they should close for at least 8,000 acres then; that if the plaintiff was unable to accept those titles then, they could not be made any more perfect, that delay would not help matters, and that they must be accepted or rejected in their then condition, stating that Mr. Helmich was returning the abstracts with his opinion, as to those titles, and requesting a decision as to whether they would be accepted or rejected.

On August 29, 1902, the plaintiff wrote to Case in reply, advising him of the receipt and approval of the abstracts for the land contained in Exhibit A-1, being about 4,300 acres, stating that: 'This list with the list included in my letter to you of the 12th instant contains all the lands for which abstracts have been submitted, making a total as shown by the abstracts of 8,829.08 acres. * * * These titles are accepted of course with the understanding that all papers submitted relating to the title, and not yet recorded, are to be placed on record and the

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abstracts continued to date to show them. This being in accordance with your statement; the object being to save time in closing the deal on what lands are now ready, as it will no doubt take time to get these papers all recorded, and the abstracts continued. * * * In accordance with your request, I am now ready to close the purchase of the above lands as stated in my letter of the 12th instant, the abstracts on the balance of the lands to be submitted as fast as titles are in shape, and the deal closed on the rest of the lands from time to time between now and December 10th. * * * I trust you will be able to get the papers ready at once, as we want to get to selling this land this fall, and it should be on the market now. I see no reason for any serious delay now in closing on the land on which the titles have been approved. ' In this letter the plaintiff asked the favor of sending the deeds to the First National Bank of Cherokee, with the notes, mortgages, etc., as it would save a trip to Minneapolis, and suggesting that he would come...

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