Gartrell v. Stafford
| Decision Date | 04 April 1882 |
| Citation | 11 N.W. 732,12 Neb. 545 |
| Parties | GARTRELL v. STAFFORD. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Gage county. Tried below before Weaver, J.Colby & Hazlett, for appellant.
Pemberton & Forbes, for appellee.
This is an action to enforce the specific performance of an alleged contract for the conveyance of real estate. The land in controversy is situated in Gage county, and the plaintiff is a resident of that county, while the defendant is a resident of California. The contract was made by certain real estate agents on behalf of the defendant, upon the authority of certain letters signed “Mrs. Julia A. Stafford.” A decree was rendered in the court below in favor of the plaintiff. The defendant appeals to this court. It appears from the evidence that during the summer of 1870 a letter, of which the following is a copy, was delivered to Messrs. Somers & Schell, real estate agents, Beatrice:
“MONTICELLO, NAPA CO., CAL., June 11, 1879.
Real Estate Agent, Beatrice, Nebraska--DEAR SIR: Not being acquainted with the name of a real estate agent in your place, you will excuse the omission. I have a farm in Gage county, Nebraska, which I am very desirous to sell, and want to put it into the hands of some agent who will attend to it promptly. I will sell it very cheap, as I am in California sick and need the money. It is known as the “Stafford farm,” and has belonged to me and my husband, now deceased, over 20 years. You can see the deed recorded in the Beatrice clerk's office. It is situated on the Little Nemaha river. It is a fine farm, well watered and well timbered, with plenty of rich bottom land. Several years ago C. E. Moore, residing in the same neighborhood, offered me $2,000 for it, but I did not then wish to sell. I have lately offered it for $1,800, but if you take it in hand I would like for you to do the best that you can. G. Hillman, of Hooker, eight miles distant from my place, has charge of it, and has rented it to Peter Stockhouse. I would like to hear from you immediately, and if you will attend to this promptly it is all that I can desire.
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¦Yours, very respectfully,¦Address, Mrs. JULIA A. STAFFORD,¦
+----------------------------------------------------------+
Monticello, Napa Co., California.”
To this the following letter was sent, directed to “Mrs. Julia Stafford, Monticello, Napa county, California:”
“Yours of the eleventh inst. has fallen into our hands. We will take charge of your land and sell it to the best advantage as soon as possible. Please give us the terms upon which you are willing to sell. It is very hard to get all cash down for land. If you will take one-third down, and balance in one and two years, at 10 per cent. on deferred payments, we could sell quicker no doubt. But give us your terms and we will go to work and sell as quick as possible.
+-------------------------+
¦Yours,¦SOMERS & SCHELL.” ¦
+-------------------------+
To this letter they received the following reply:
“MONTICELLO, NAPA CO., CAL., June 24th.
Messrs. Somers & Schell, Beatrice, Nebraska: Yours of June 18th came promptly to hand to-day, and I hasten to reply. The place at $1,800 cash would be very cheap. I would much prefer to sell at that figure for cash than to get more and wait; but if you cannot sell for cash I will take $2,500; one-third down, and the balance in one and two years, at 10 per cent. interest on remainder, with mortgage for security on the place. If possible I would like to have it sold before the first of next September. The place is an uncommonly good one, and I am very anxious to sell. Please do the best you can, and thanking you for promptness in the matter, I am yours, very respectfully,
Mrs. JULIA STAFFORD, Monticello, Napa Co., Cal.”
In reply, Somers & Schell sent the following:
“September 6, ____9.
Mrs. Julia Stafford, Monticello, California--DEAR MADAME: We have an offer from M. H. Gartrell of $2,500 for your N. W. one-fourth 1-6-8, in this county. Will pay $1,500 cash; balance in five annual payments of $200 each, with 8 per cent, interest. We tried to get better offer out of him, and told him what your price was. We, however, write to you in regard to the matter.
+--------------------------------------------------------+
¦Write us by return mail.¦Yours, truly,¦SOMERS & SCHELL.”¦
+--------------------------------------------------------+
The letter received in answer to the above is as follows:
“MONTICELLO, NAPA CO., CAL., September 12, 1879.
Messrs. Somers & Schell, Beatrice, Nebraska--SIRS: Yours of September 6th is just received. I think the price too low, but as I am in very needy circumstances, and must have money, I have, after much deliberation, concluded to take it. I am anxious for you to sell it and close the affair as soon as possible, because I need the money at present very much.
+----------------------------------+
¦Yours, truly,¦Mrs. JULIA STAFFORD,¦
+----------------------------------+
Monticello, Napa Co., California.”
On receipt of the letter of September 12th, Somers & Schell addressed a letter to the defendant at Monticello, California, containing a deed for her to execute to Mr. Gartrell, etc. To this letter they received the following:
“MONTICELLO, NAPA COUNTY, September 30th.
Messrs. Somers & Schell: Yours of the sixteenth of September, with the deed, was received by me a few days ago. Owing to the fact that there is no notary public or proper official to sign the deed before near here, I have been unable to return it, and will not be able to send it back for about a week from this day. I therefore thought proper to drop you a line to let you know the cause of the delay. I may just mention here in this connection that before sending the mortgage and also the notes I wish you to have them recorded. Send the notes and mortgage to my address at Germantown, Colusa county, California, in registered letters, in care of T. C. Hillman.
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¦Very respectfully,¦Mrs. JULIA STAFFORD,¦
+---------------------------------------+
Germantown, Colusa county, California.”
On the third of October of that year a letter dated at Monticello, California, signed “Mrs. Julia A. Stafford,” was sent to Messrs. Somers & Schell, saying that the deed for the land in question would be sent on the seventh inst. It is unnecessary to refer to the other letters set out in the record. No deed for the land in controversy has been received; and this action was brought by the purchaser to enforce the contract.
The first objection made by the appellant is that an action of this kind can only be brought where the defendant resides or may be summoned. But this objection is not well taken.
An action to enforce specific performance of a contract for the conveyance of real estate is of twofold character, viz., in rem and in personam. In the one case the decree of the court operates directly upon the land; in the other, where the court has jurisdiction of the parties, it may compel them to perform although the land may be situated outside the state. Story, Eq. Jur. §§ 743, 744; Bailey v. Ryder, 10 N. Y. 363;Newton v. Brunson, 13 N. Y. 587;Gardner v. Ogden, 22 N. Y. 387;Cleveland v. Burrill, 25 Barb. 532;Fenner v. Sanborn, 37 Barb. 810;Burrill v. Eames, 5 Wis. 260. There is no doubt that an action may be brought against a non-resident in the county where the land in controversy is situated.
The second objection of the appellant is that the plaintiff has an adequate remedy at law in an action for damages. The rule contended for by the appellant undoubtedly applies to contracts for the sale of personal property, the reason being that damages in such case are readily calculated on the market price of property such as wheat, corn, wool, etc., like quantities of the same grade being of equal value, and thus afford as complete a remedy to the purchaser as the delivery...
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