Reynolds v. B. &. M.

• Decision Date: 05 January 1881
• Citation: 7 N.W. 737,11 Neb. 186
• Court: Nebraska Supreme Court
• Parties: REYNOLDS v. B. &. M.

11 Neb. 186

7 N.W. 737

REYNOLDS

v.B. &. M.

Supreme Court of Nebraska.

Filed January 5, 1881.

Error from the district court of Lancaster county.W. J. Lamb, for plaintiff.

T. M. Marquett, for defendant.

LAKE, J.

The action below was based upon an alleged breach by the defendant of a contract known as a “pre-emption certificate,” issued by the company to the plaintiff on the fifteenth of April, 1872. By the terms of this certificate the defendant bound itself to sell the land in controversy to the plaintiff upon certain terms and conditions, to be embodied in a more formal contract after the company had obtained its patent from the United States. This formal contract, it was stipulated, should be applied for by the purchaser within 60 days after receiving notice, which the company was to give, that the patent had been obtained. Among the several conditions of this preemption certificate was this: “In case the pre-emption applicant shall fail to pay for, or enter into contract to pay for, the land which he may have preempted, before the expiration of said 60 days, he will thereby lose all benefit of his pre-emption right, and the money which he may have paid thereon will be forfeited. In case a pre-emption applicant shall neglect or refuse to comply with the terms and conditions above named, and shall so forfeit his preemption right, he will also forfeit all improvements that he may have made upon the land.”

As to what the terms of the contract subsequently to be made were to be, the petition is almost silent. In one place it is alleged that the company agreed to “make a contract with the plaintiff in the usual form for the sale of the land, * * * which contract was to be in usual form, for warranty deed of said premises when the same was paid for, in accordance with the terms then agreed upon between this plaintiff and the said defendant, of long credit, or 10 years' credit, but which terms of payment were afterwards by mutual agreement * * * wholly set aside and waived.” This is the substance of the charge on this point, although several times repeated with slightly changed phraseology. This informs us that the contract was to be in “ usual form,” and for a warranty deed “of the land when paid for, in accordance with the terms agreed upon.” But contracts for the sale of realty are not of so uniform a structure that courts can judicially know the terms of a particular one by being told that it is for the sale of land. So, too, of the terms of payment of the several amounts, and time of each, the court cannot know them by being told that they were those “agreed upon,” especially when this is immediately followed by the declaration that they were afterwards “wholly set aside and waived,” without any others being substituted for them.

The plaintiff, however, concedes that he did not comply with the terms of payment, whatever they were, whereby, according to a clause of the certificate above quoted, he lost “all benefit of his pre-emption rights,” his payments previously made, and improvements on the land, unless in some way relieved from the forfeiture; and he endeavors to thus relieve himself by alleging that “during the year 1875 the said defendant, to induce the plaintiff to continue to cultivate and improve said premises, and enhance their value, and to finally pay for the same, expressly agreed to waive, and did waive, any and all further payment for said lands, according to the terms of said contract, so far only as the time of payment was concerned, and expressly agreed with the plaintiff if he would not abandon said lands and said contract,” which he says he then contemplated doing, “but would go on and cultivate and improve the same, that the plaintiff might pay for the same whenever it should become convenient” for him to do. This matter thus pleaded in avoidance of the otherwise conceded forfeiture was...