Sowards v. Moss

• Decision Date: 23 February 1899
• Docket Number: 8746
• Citation: 78 N.W. 373,58 Neb. 119
• Parties: JOHN K. SOWARDS v. GEORGE H. MOSS
• Court: Nebraska Supreme Court

78 N.W. 373

58 Neb. 119

JOHN K. SOWARDS v. GEORGE H. MOSS

No. 8746

Supreme Court of Nebraska

February 23, 1899

ERROR from the district court of Buffalo county. Tried below before WESTOVER, J. Affirmed.

AFFIRMED.

W. L Hand, for plaintiff in error.

B. O Hostetler, contra.

OPINION

RAGAN C.

In the spring of 1895 John K. Sowards resided near Danville, Illinois. George H. Moss and Howe Blue resided in Buffalo county, Nebraska. Sowards wrote a letter to Blue in which he directed him to offer Moss $ 1,000 for a piece of real estate owned by the latter in said Buffalo county, a warranty deed for the property, accompanied by an abstract of title, to be delivered by Moss by July 10, 1895, to the First National Bank of Danville, Illinois. Blue showed this letter to Moss, and the latter authorized Blue to notify Sowards that he accepted the latter's proposition. Blue did at once so notify Sowards by letter. On July 8, 1895, Moss and his wife executed a warranty deed of their farm to Sowards and sent the same, accompanied by an abstract of title, in a registered letter to the First National Bank of Danville, Illinois, accompanied by a letter of instruction to deliver the deed to Sowards upon his paying to it for Moss the $ 1,000. This deed and abstract reached the First National Bank certainly as early as July 12, 1895, but the bank neglected to notify Sowards that the deed was there until some time in August. He then refused to accept it because not delivered by July 10. Moss then brought this suit in the district court of Buffalo county against Sowards to recover the $ 1,000 purchase-money and had judgment, to review which Sowards has filed here a petition in error.

1. The first argument is that the petition does not state a cause of action, because it does not allege that the contract for sale and purchase of this real estate between the parties was in writing. But in a suit to recover the purchase price of real estate alleged to have been sold and conveyed by the plaintiff to the defendant it is not necessary that the petition should allege that the contract of sale was in writing. (Schmid v. Schmid, 37 Neb. 629, 56 N.W. 207.)

2. Another argument is that the evidence shows that the contract by these parties was an oral one; that Moss was not bound to convey, and, therefore, Sowards is not bound. There are two answers to this contention: (1.) The proposition of Sowards to purchase the land was in writing. Moss accepted this proposition and authorized Blue to notify Sowards that he had accepted it. The...