Moore v. Markel
| Decision Date | 04 December 1924 |
| Docket Number | 24202 |
| Citation | 201 N.W. 147,112 Neb. 743 |
| Parties | JOHN H. MOORE, EXECUTOR, APPELLEE, v. JOHN H. MARKEL, APPELLANT: EMILY J. MOORE, INTERVENER, APPELLEE. JOHN H. MARKEL, APPELLANT, v. ESTATE OF ROBERT E. MOORE, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: JEFFERSON H BROADY, JUDGE. Reversed, with directions.
REVERSED.
Stewart Perry & Stewart, for appellant.
Jacob Fawcett, Samuel J. Tuttle and C. C. Flansburg, contra.
Heard before MORRISSEY, C. J., DEAN, DAY, GOOD and THOMPSON, JJ.
John H Moore, as executor of the will of Robert E. Moore, brought in the district court an action against John H. Markel, to obtain authority to execute a warranty deed for two lots in the city of Lincoln, Nebraska, which in his lifetime his testator had contracted in writing to convey to Markel, and to enforce specific performance of the contract. With this action was consolidated another action, then pending in the district court on appeal from the county court, in which Markel was seeking allowance of a claim against the estate of Robert E. Moore for the advancements he had made on the same contract, basing his right to recover on the theory that he had rescinded the contract because of inability of the executor to perform the contract according to its terms. Emily J. Moore, widow of Robert E. Moore, intervened and joined in the prayer of the executor's petition, and offered to join in executing a deed conveying the lots to Markel. For convenience, John H. Moore, executor, will be referred to as plaintiff and Markel as defendant. The trial of the consolidated actions resulted in the disallowance of defendant's claim and authorizing plaintiff to execute a warranty deed conveying the lots, and decreeing specific performance of the contract. Defendant appeals.
This action comes here as a case stated under rule 14 of this court (94 Neb. XIII). The facts are not in dispute, and, so far as pertinent to the issues to be determined, may be summarized as follows:
On March 16, 1920, Robert E. Moore, without his wife joining, entered into a written contract with defendant, wherein he agreed to convey to the latter two lots in the city of Lincoln, Nebraska, for a consideration of $ 60,000, of which $ 10,000 was then paid and the remainder was to be paid on or before January 1, 1922, and was to bear interest at 6 per cent. per annum, payable semi-annually. Robert E. Moore was to furnish abstract, showing merchantable title of record, and to deliver his warranty deed to vendee when the remainder of the purchase price and interest had been paid. Defendant was given the privilege of paying $ 1,000, or any multiple thereof, on any interest pay day, and the further right, upon the payment of $ 3,000 additional of the purchase price, to remove from the lots the buildings thereon. Time and punctuality of performance of the agreement were made an essential element of the contract. Abstract of title was furnished and title approved by defendant, who paid an additional $ 3,000 of the purchase price, took possession of the lots, and removed the buildings that were thereon when the contract was executed. The instalments of interest that became due September 16, 1920, March 16 and September 16, 1921, were paid when due.
In July, 1921, defendant, in writing, requested Moore to agree to an extension of time for making the deferred payments. Several letters were exchanged between the parties. Correspondence finally resulted in Moore writing a letter to defendant on July 19, 1921, in which he said, in substance, that if defendant would pay $ 5,000 on the principal, plus interest and taxes, he would give him one year's time at 6 per cent. on the remainder due, and if, at the end of a year's time, $ 5,000 additional on the principal and the interest and taxes were paid, he would give an additional year's time on the balance of the principal at 6 per cent. interest. On July 23, 1921, defendant, in writing, accepted Moore's offer. On November 16, 1921, defendant, in writing, requested Moore to extend to June 1, 1922, the time for payment of the $ 5,000 of principal which would have been due January 1, 1922, pursuant to their former correspondence. On the following day Moore wrote a letter to defendant in which he said: "Replying to yours of the 16th would say, I think I will be needing the money about January first, next, very much and would be very glad to have it at that time, but if you cannot possibly raise it, I will give you until June 1, 1922."
It is stipulated that taxes on the real estate described in said contract were paid by defendant as follows: November 19, 1920, city treasurer, Lincoln, Nebraska, $ 178.34, for 1920 taxes; March 14, 1921, city treasurer, Lincoln, Nebraska, $ 57.93, for paving taxes; March 29, 1921, county treasurer, Lincoln, Nebraska, $ 595.08, for 1920 county taxes. For aught that appears in the record, this is all of the taxes that have been levied upon the lots in question.
On December 6, 1921, Robert E. Moore died testate, without issue, and leaving him surviving his widow, Emily J. Moore. On January 31, 1922, the will of Robert E. Moore was admitted to probate and plaintiff was appointed executor. Emily J. Moore later renounced the provisions made for her in the will of her husband and elected to take under the statute. On March 16, 1922, defendant went to plaintiff and stated that he wanted to pay the balance due on the contract for the purchase of the lots described in the contract and was then able to pay the same, and asked plaintiff if he had the deed to said property executed by Robert E. Moore and was ready to deliver said deed according to the contract. Plaintiff then stated that he had no deed executed by Robert E. Moore, but that he would apply to the court for authority to make a deed. On the same day defendant learned for the first time that Robert E. Moore was married at the time he executed the contract, and that his widow, Emily J. Moore, survived him. He was then advised by his attorneys that Emily J. Moore was the owner of an undivided one-half interest in said lots. Afterwards and on the same day defendant delivered to plaintiff the following writing:
On April 28, 1922, plaintiff instituted his action to obtain authority to execute a deed of conveyance and to enforce specific performance of the contract.
The decree is assailed on many grounds. We shall consider only such as seem necessary to a proper determination of this appeal. By express provision "time and punctuality in performance of agreements contained herein" were made an essential element of the contract. While the contract was executory, in part at least, the terms were modified by mutual agreement of the parties as to the time of making the deferred payments. Plaintiff argues that the agreement to extend time is invalid for want of consideration.
The rule of law applicable is that a contract, containing mutual obligations of the parties, may, at any time after it has been made and before a breach has occurred, be changed or modified in one or more of its details by a new agreement, by mutual consent of the parties, without any new, independent or distinct consideration. Bowman v. Wright, 65 Neb. 661, 91 N.W. 580; Easton v. Snyder-Trimble Co., 94 Neb. 18, 142 N.W. 695; Teal v. Bilby, 123 U.S. 572, 31 L.Ed. 263, 8 S.Ct. 239; Kiler v. Wohletz, 79 Kan. 716, 101 P. 474, L. R. A. 1915B, 11, and note (b) appearing on page 17. It...
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