Darr v. Mummert

• Decision Date: 05 January 1899
• Citation: 77 N.W. 767,57 Neb. 378
• Parties: DARR v. MUMMERT.
• Court: Nebraska Supreme Court

57 Neb. 378

77 N.W. 767

DARR

v.MUMMERT.

Supreme Court of Nebraska.

Jan. 5, 1899.

Syllabus by the Court.

1. By a contract in writing signed by A. and B., the former agreed to sell and convey to the latter certain described real estate, provided the latter made certain specified payments of mony at certain specified times. The contract contained no agreement on the part of B. to purchase the real estate, or to make the payments mentioned. Held, (1) that by the contract A. gave B. the option to purchase said real estate; (2) that B.'s failure to make the payments specified did not invest A. with a cause of action against him on the contract.

2. The petition set out in the opinion, and held not to state a cause of action.

Error to district court, Dawson county; Greene, Judge.

Action by M. F. Mummert against G. B. Darr. Judgment for plaintiff. Defendant brings error. Reversed.C. W. McNamar, for plaintiff in error.

Geo. Fox, for defendant in error.

RAGAN, C.

M. F. Mummert brought this suit to the district court of Dawson county against G. B. Darr. Darr interposed a general demurrer to Mummert's petition, which the court overruled. Darr refused to plead further, and judgment was entered against him, to review which he has filed here a petition in error.

The only question in the case is whether the petition states facts sufficient to constitute a cause of action. The petition, so far as material here, was in the words and figures as follows: “The plaintiff complains of the defendant for that on or about the 1st day of November, 1893, plaintiff and the defendant, for the considerations named in the real-estate contract hereinafter copied, made in writing a real-estate contract, of which the following is a copy: ‘This agreement made this 1st day of November, A. D. 1893, between M. F. Mummert, of Bushnell, McDonough county, Illinois, of the first part, and George B. Darr, of Lexington, Dawson county, Nebraska, of the second part, witnesseth that, in consideration of the covenants and agreements herein specified, the said party of the first part hereby agrees to sell unto the said party of the second part the following described real estate, situated in Dawson county, and state of Nebraska, to wit: The northwest quarter (1/4) of section twenty-three (23) in township ten (10) north, of range twenty-two (22) west of the 6th P. M., in Dawson county, Nebraska, as designated by the records of said Dawson county, for the sum of $2,000, $400 of which has been paid in hand, the receipt of which is hereby acknowledged: Now, if the said party of the second part shall pay to the party of the first part punctually the several sums set forth, and at the dates set forth, below, to wit, $400 on or before the 1st day of November, 1895, $1,200...