Johnson v. Weber

Decision Date02 December 1903
Docket Number13,087
Citation97 N.W. 585,70 Neb. 467
CourtNebraska Supreme Court

APPEAL from the district court for Knox county: JAMES F. BOYD JUDGE. Reversed with instructions.


Frank Dolezal, for appellant.

William A. Meserve and W. L. Henderson, contra.




This is an action brought to obtain specific performance of a contract for the sale of a farm. The defendants, James G. and Electa Weber, on September 7, 1901, entered into a written contract, agreeing to convey to the plaintiff the northeast quarter of section 30, town 29, range 5 east, for the sum of $ 6,400, $ 1,000 to be paid in cash, and deposited, together with the contract, in the bank of Creighton, and the remainder, $ 5,400, "by" March 1, 1902. In consideration of such payments the defendants were to convey the premises, and in case of a failure to pay the remainder of the purchase money, the $ 1,000 "so paid and deposited with this contract" should be forfeited. The wife seems to have entered into the contract with some reluctance and finally refused, altogether, to carry it out. The title to the farm was in her. The contract, by its terms provided for payment of the $ 1,000 "on the signing of this contract, and the same is paid for the purpose of binding said bargain." Defendants' answer alleged that the following clause indorsed on the back of the contract, "cash payment herein described to be paid by September 14, 1901," was placed upon the contract by agreement between Johnson and James G. Weber and without the assent of Electa Weber; that the latter was the sole owner of the premises, and that her husband had no authority to introduce any change into the contract; that the premises were occupied as a home, and that the wife never acknowledged the instrument after its terms were changed by the indorsement. Defendant, James G. Weber, says that the contract was annulled by mutual agreement between him and the plaintiff prior to September 21, 1901. Electa Weber's answer sets up the alteration of the contract by indorsement of an extension of time for payment of the $ 1,000, and that the $ 1,000 was not paid within the time stated in the contract, and she therefore elected to declare the contract at an end, and that such election was assented to by plaintiff. She also says that she was induced to sign the contract by threats on the part of her husband to desert her if she did not, and that she never acknowledged the instrument.

The reasons given, therefore, why specific performance of this contract should not be decreed, resolve themselves into three: (1) The indorsement upon the contract, without the assent of the wife, who is the owner of the property, of the extension until September 14 of the time for paying the $ 1,000; (2) the alleged annulment of the contract prior to September 21 by oral agreement between the plaintiff and John G. Weber; (3) the fact alleged in defendant's answer, and testified to in her evidence, that she was induced to sign the agreement by her husband's threats to desert her if she did not.

It seems unnecessary to discuss, at any great length, the proposition that the indorsement of an extension of time for the payment of the $ 1,000 is not sufficiently material to avoid the contract. This money, it is true, was originally agreed to be paid on the day of the contract's signing, which was September 7, 1901; but it appears clearly that it was understood between the parties that Johnson did not have the money with him; that he would have to get it from Fremont, and the money was to be paid, as the contract recited, for the purpose of binding the bargain and was to be deposited with the contract in the bank at Creighton. It was actually deposited in the bank at Creighton three days later, and on...

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