Freeman v. Elder, 33498

• Citation: 158 Neb. 364,63 N.W.2d 327
• Decision Date: 12 March 1954
• Docket Number: No. 33498,33498
• Parties: FREEMAN v. ELDER et al.
• Court: Supreme Court of Nebraska

Page 327

63 N.W.2d 327

158 Neb. 364

FREEMAN v. ELDER et al.

No. 33498.

Supreme Court of Nebraska.

March 12, 1954.

Syllabus by the Court.

1. A general demurrer admits all allegations of fact in the pleading to which it is addressed, which are issuable, relevant, material, and well pleaded; but does not admit the pleader's conclusions of law or fact.

2. A general demurrer tests the substantive legal rights of parties upon admitted facts, including proper and reasonable inferences of law and fact which may be drawn from facts which are well pleaded. If the petition states facts which entitle the plaintiff to relief, whether legal or equitable, it is not demurrable upon the ground that it does not state facts sufficient to constitute a cause of action.

3. In passing on a demurrer to a petition, the court will consider an exhibit attached thereto and made a part thereof, if the allegations stated therein either aid the petition in stating a cause of action or charge facts going to avoid liability on the part of the defendant.

4. Where, by the terms of a contract, the conditions to be performed by the respective parties are concurrent, the plaintiff, in an action for specific performance, must allege and prove performance, or a tender of performance, of the conditions on his part to be performed, or such facts as will show that such tender would have been unavailing.

5. Where the vendor is unable to convey the property which he has agreed to convey because of a defect in the quality or quantity of the estate which he possesses and the vendee has entered into the contract without knowledge or notice of the deficiency or defect in the vendor's title, he may ordinarily have specific performance of the contract as to whatever interest the vendor has with such abatement of the purchase price as shall be proportionate to the diminution in value of the subject matter, to be determined by the court from competent evidence adduced with relation thereto.

6. On the other hand, specific performance with abatement will not be enforced where it would be productive of inequity or would have the effect of making a new contract between the parties, or it is patent that the nature of the subject matter, the terms of the contract, or the kind and extent of the defect are such that they furnish no basis upon which to ascertain the amount of the compensation or abatement with any degree of certainty, and the fixing thereof would therefore be a mere matter of speculation.

Melvin Moss, Fairbury, for appellant.

Walter C. Weiss, John L. Richards, Hebron, Keenan & Corbitt, Geneva, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

Plaintiff Samuel Freeman and defendants Clyda Elder, Edith Elder, Eugene E. Elder, and Betty Jane Elder entered into a written contract whereby plaintiff agreed to buy and defendants agreed to sell a described quarter section of land in Thayer County Nebraska, free and clear of all encumbrances except a described mortgage. Plaintiff brought this action against defendants seeking specific performance of the contract with abatement of the purchase price because, upon conveyance of the land to defendants, their grantor, the Federal Land Bank, had reserved to itself 'one half of minerals, oil and fissionable material until the year 1964.' Defendants demurred generally to plaintiff's amended petition which had a copy of the contract attached thereto and made a part thereof. The demurrer was sustained, and upon plaintiff's refusal to plead further the action was dismissed at plaintiff's costs. Plaintiff then appealed to this court, assigning that the trial court erred in so doing. We sustain that assignment.

In In re Estate of Halstead, 154 Neb. 31, 46 N.W.2d 779, 780, it was held that: 'A general demurrer admits all allegations of fact in the pleading to which it is addressed, which are issuable, relevant, material, and well pleaded; but does not admit the pleader's conclusions of law or fact.

'A general demurrer tests the substantive legal rights of parties upon admitted facts, including proper and reasonable inferences of law and fact which may be drawn from facts which are well pleaded. If the petition states facts which entitle the plaintiff to relief, whether legal or equitable, it is not demurrable upon the ground that it does not state facts sufficient to constitute a cause of action.' See, also, Johnson v. Marsh, 146 Neb. 257, 19 N.W.2d 366; Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 149 Neb. 507, 31 N.W.2d 477.

Also, in Valentine Oil Co. v. Powers, 157 Neb. 71, 59 N.W.2d 150, 153, we reaffirmed that: 'In passing on a demurrer to a petition, the court will consider an exhibit attached thereto and made a part thereof, if the allegations stated therein either aid the petition in stating a cause of action or charge facts going to avoid liability on the part of the defendant.'

In the light of such rules and others hereinafter discussed, we have examined plaintiff's amended petition. The contract duly executed and acknowledged by the parties on September 12, 1947, agreed that defendants would sell and plaintiff would buy the aforesaid land. The consideration therefor was $4,250, payable $750 cash, receipt of which was acknowledged. Further, plaintiff agreed to assume and pay a balance of $2,770.71, still owing by defendants on a recorded mortgage to the Federal Land Bank, together with interest thereon from September 12, 1947, and pay defendants the balance of $729.29 on September 12, 1948, with interest at 4 percent from September 12, 1947, to date of settlement. Defendants agreed to pay the 1946 and all prior taxes and the parties agreed to each pay one-half of the 1947 taxes. It was agreed that defendants should have all income from the 1946 crops and other income, but plaintiff was given immediate possession of the land for all purposes, including the right to plow and seed wheat in the fall of 1947. Defendants agreed to forthwith execute a warranty deed to plaintiff for the premises and deposit same, together with a copy of the contract, with the Thayer County Bank of Hebron, Nebraska, as escrow holder, until final settlement.

On payment of the balance of $729.29 with interest, and compliance with other provisions, such deed was to be delivered to plaintiff. Defendants agreed to furnish an abstract brought down to date of final settlement, showing title in them free from all encumbrances except the mortgage and one-half of the 1947 taxes, and deliver same to plaintiff or his attorney for preliminary examination by November 15, 1947.

However, on September 13, 1948, a supplemental contract was duly executed by the parties agreeing that in consideration of payment by plaintiff of $400 on the balance of $729.29 and interest thereon due September 12, 1948, then the date for payment by plaintiff of the difference thereof remaining unpaid with interest thereon, would be extended until September 12, 1949. It was then provided: 'Subject only to the provisions of this supplemental agreement, the parties hereby ratify all of the terms of said original contract of September 12, 1947.'

Plaintiff's amended petition alleged execution of the aforesaid agreement attached to and made a part of the petition; summarized its relevant material terms; and alleged performance by plaintiff of all things required therein by him until submission of the abstract by defendants, whereupon by examination thereof he discovered prior to September 12, 1949, the time for final settlement, that the Federal Land Bank in its conveyance of the land to defendants have made a reservation to itself of 'one half of minerals, oil and fissionable material until the year 1964.'

Plaintiff alleged that upon discovery of such deficiency of title he took the matter up with defendants' attorney and assisted him in an effort to secure from the Federal Land Bank a release of said reservation or a conveyance of its interest in the premises, but they were unsuccessful. He alleged that prior to September 12, 1949, he informed defendants that he was ready and willing to pay the balance due and required of him by the terms of the...